THE  CHINO- JAPANESE  TREATIES 
OF  1915 


Books  by 

G.  ZAY  WOOD 

1. 

China,    the    United    States    and    the    Anglo- 
Japanese  Alliance. 

2. 

The  Chino- Japanese  Treaties  of  May  25,  1915. 

3. 

The  Twenty-one  Demands. 

4. 

China,  Japan  and  the  Shantung  Question. 

The  Chino- Japanese  Treaties 
of  May  25, 1915 


G.  Zay  Wood 


Formerly  Editor  of  "The  Far  Eastern  Republic," 

Curtis  Fellow  in  International  Law  and  Diplomacy,  Columbia 

University,  President  of  The  Chinese  Political 

Science  Association,  etc. 


New  York  Chicago  . 

Fleming  H.  Revell  Company 

London     anid     Edinburgh 


•-:  ^• 


Copyright,  1921,  by 
FLEMING  H.  REVELL  COMPANY 


Printed  in  the  United  States  of  America 


r 


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TO 

SINN-MING 


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Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

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http://www.archive.org/details/chinojapanesetreOOwoodrich 


CONTENTS 

CHAPTER  PAGE 

I.  Introduction 9 

II.  Lack  of  Legislative  Concurrence      .  16 

III.  Conflict  with  Existing  Treaties      .  31 

IV.  Conflict  with  the  Open  Door  Policy  40 
V.  Doctrine  of  Rebus  Sic  Stantibus    .  55 

VI.    Abrogation   of  the   Lease  of   Kiao- 

chow 66 

VII.    Duress  as  a  Ground  for  Abrogation  16 

VIII.    Transfer  Irregular  and  Illegal       .  87 

IX.    Conclusion 96 

Appendices  : 

A.  Treaty  Respecting  the  Province 

OF  Shantung  ....     106 

B.  Exchange    of    Notes    Respecting 

Shantung 108 

C.  Exchange    of    Notes    Respecting 

the  Opening  of  Ports  in  Shan- 
tung    110 

D.  Exchange   of    Notes    Respecting 

the  Restoration  of  the  Leased 
Territory  of  Kiaochow  Bay     .     112 

E.  Treaty   Respecting    South    Man-. 

CHURIA  AND  EASTERN  InNER  MON- 
GOLIA •       '.,      \,\      .1       .       .       .115 


CONTENTS 

FAGS 

F.  Exchange    of    Notes    Respecting 

THE  Terms  of  Lease  of  Port 
Arthur  and  Dalny  and  the 
Terms   of    South    Manchurian 

AND   AnTUNG-MuKDEN    RAILWAYS      118 

G.  Exchange    of    Notes    Respecting 

THE  Opening  of  Ports  in  East- 
ern Inner  Mongolia     .       .       .     120 

H.  Exchange  of  Notes  Respecting 
Railways  and  Taxes  in  South 
Manchuria  and  Eastern  Inner 
Mongolia 124 

I.  Exchange  of  Notes  Respecting 
THE  Employment  of  Advisers 
IN  South  Manchuria  .       .       .     126 

J.  Exchange  of  Notes  Respecting 
the  Explanation  of  "Lease  by 
Negotiation"  in  South  Man- 
churia        128 

K.  Exchange  of  Notes  Respecting 
THE  Arrangement  for  Police 
Laws  and  Ordinances  and  Taxa- 
tion IN  South  Manchuria  and 
Eastern  Inner  Mongolia    .       .130 

L.   Exchange    of    Notes    Respecting 

THE  Matter  of  Hanyehping      .     133 

M.   Exchange    of    Notes    Respecting 

The  Fukien  Question        .       .     135 

N.   The  Claim  of  China       .       .       .     137 


THE  CHINOJAPANESE 
TREATIES  OF  MAY  25,   1915 

I 

INTRODUCTION 

ONE  stumbling-block  which  is  not  insurmount- 
able, but  has  hitherto  stood  in  the  way  of  the 
establishment  of  cordial  and  friendly  rela- 
tions between  China  and  Japan,  is  the  so-called 
Chino-Japanese  treaties  of  1915.  They  constituted 
the  burning  point  of  the  controversy  between  China 
and  Japan  at  the  Peace  Conference  at  Versailles, 
where  the  Chinese  delegates,  for  the  reasons  which 
we  shall  take  up  later,  urged  their  abrogation,  while 
the  Japanese  delegates  insisted  on  their  validity  on 
the  ground  that  they  were  duly  entered  into  by  the 
two  countries  and  that  they  must  be  carried  out  if 
for  no  other  reason  than  the  proverbial  sanctity  of 
international  treaties.  China's  claim  for  abrogation 
won  the  sympathetic  hearing  of  President  Wilson 
and  Premier  Lloyd  George  and  many  other  leading 
delegates  at  the  Conference.  The  issue  became 
blurred,  however,  by  the  Shantung  "settlement,'*  al- 
though it  is  a  known  fact  that  in  reaching  that  "set- 
tlement,'*  President  Wilson  had  refused  to  recognise 


;iO  :THE  GHINQ- JAPANESE  TREATIES 

the  validity  of  the  Chino-Japanese  treaties  of  1915 
and  Premier  Lloyd  George  considered  them  as  good 
as  executed.  In  the  absence  of  a  clear  ruling  by 
the  Peace  Conference,  however,  Japan  has  since 
insisted  on  their  operation,  and  China  has  continued 
to  urge  their  abrogation.  Unless  the  question  of 
their  validity  is  finally  disposed  of,  therefore,  the 
Chino-Japanese  treaties  of  1915  will  forever  remain 
a  disturbing  element  in  international  politics  in  the 
Far  East. 

The  Chino-Japanese  treaties  of  1915,  taken  all 
together,  comprise  two  treaties,  properly  so  called, 
one  respecting  the  Province  of  Shantung,  and  the 
other  respecting  South  Manchuria  and  Eastern  In- 
ner Mongolia,  and  thirteen  diplomatic  notes  ex- 
changed between  the  Chinese  and  the  Japanese  Gov- 
ernments and  presumably  attached  to  the  above  two 
treaties.  For  the  sake  of  convenience,  these  two 
treaties  and  thirteen  notes  are  hereafter  referred  to 
merely  as  *'the  Chino-Japanese  treaties  of  1915." 
They  were  concluded  on  May  25,  of  the  said  year, 
as  the  result  of  the  series  of  diplomatic  negotiations 
in  regard  to  the  Twenty-one  Demands.  The  said 
demands  were  made  by  the  Japanese  Government, 
January  18,  1915,  and  were  pressed  upon  the  Chi- 
nese Government  for  acceptance  in  their  entirety. 
The  nature  and  the  contents  of  these  demands,  the 
motive  which  had  actuated  them,  and  their  political 
and  economic  significance,  have  been  treated  in  ex- 
tenso  in  the  brochure,  "The  Twenty-one  Demands." 


OF  MAY  25,  1915  11 

We  need  only  recapitulate  them  very  briefly  here  in 
order  to  make  our  narrative  comprehensible. 

The  demands  consisted  of  five  Groups,  the  first 
relating  to  Japan's  succession  to  the  German  rights 
and  concessions  in  the  Shantung  province,  the  sec- 
ond relating  to  Japan's  special  interests  in  South 
Manchuria  and  Eastern  Inner  Mongolia,  the  third 
relating  to  Japan's  desire  of  making  the  Han-yeh- 
ping  Company  a  Chino-Japanese  joint  enterprise, 
the  fourth  asking  for  non-alienation  of  the  coast  of 
China,  and  the  fifth  relating  to  the  questions  of 
China's  national  advisers,  police  administration,  pur- 
chase of  arms,  Japanese  religious  propaganda  in 
China,  Yangtze  valley  railways,  and  Fukien  prov- 
ince. Except  the  Fifth  Group,  which  was  postponed 
for  "future  negotiation,"  the  first  four  Groups 
of  demands  were  embodied,  in  one  form  or  an- 
other, in  the  two  treaties  and  thirteen  annexed 
notes. 

In  considering  their  validity  from  the  point  of  In- 
ternational Law,  as  well  as  in  attempting  to  under- 
stand the  real  character  of  these  treaties,  it  is  neces- 
sary to  bear  in  mind  the  exact  circumstances  imder 
which  they  were  concluded.  The  Twenty-one  De- 
mands were  presented  to  the  Chinese  President  in 
person  on  January  18,  1915;  on  February  2,  the 
first  conference  took  place;  on  April  17,  the  Japanese 
Minister  suspended  the  negotiation  because  of 
China's  refusal  to  accept  the  demands  in  toto;  on 
April  26,  Japan  presented  a  revised  list  of  demands, 


12    THE  CHINO-JAPANESE  TREATIES 

twenty-four  in  all,  and  pressed  the  Chinese  Govern- 
ment for  immediate  acceptance;  on  May  1,  China 
replied  to  the  revised  demands,  and  in  a  Memo- 
randum read,  the  extent  was  pointed  out  to  the 
Japanese  Minister,  to  which  the  Chinese  Govern- 
ment was  able  to  go;  on  May  6,  the  Japanese  Min- 
ister informed  the  Chinese  Foreign  Office  that  an 
ultimatum  was  received  from  Tokio  and  that  it 
would  be  delivered  upon  China's  further  refusal  to 
comply;  on  May  7,  at  3  p.m.  to  be  exact,  the 
Japanese  Minister  delivered  the  ultimatum  to  the 
Chinese  Government.  "The  Imperial  Japanese  Gov- 
ernment hereby  again  offer  their  advice  and  hope 
that  the  Chinese  Government,  upon  this  advice,  will 
give  a  satisfactory  reply  by  six  o'clock  p.m.  on  the 
9th  day  of  May.  It  is  hereby  declared  that  if  no 
satisfactory  reply  is  received  before  or  at  the  speci- 
fied time,  the  Imperial  Government  will  take  steps 
they  may  deem  necessary."  Up  to  the  delivery  of 
the  ultimatum,  twenty-five  conferences  were  held, 
but  the  negotiations  were  abruptly  terminated  by 
this  drastic  action  on  the  part  of  the  Japanese  Gov- 
ernment. On  May  8,  the  Chinese  Government  com- 
plied with  the  ultimatum;  on  May  15,  the  text  of 
the  treaties  and  notes  was  drafted;  and  on  May  25, 
they  were  signed,  embodying  the  first  four  Groups 
of  the  Twenty-one  Demands 

It  is  true  that  the  treaties  in  question  concern 
Japan  and  China,  the  contracting  parties,  only.  In 
view  of  the  fact  that  the  concessions  granted  to 


OF  MAY  25,  1915  13 

Japan  under  these  treaties  are  of  such  a  wide  range 
and  of  such  a  nature  that  they  either  infract  or 
conflict  with  the  treaty  rights  of  the  other  Powers  in 
China,  it  is  proper  to  say  that  they  are  not  of  strictly 
Chino-Japanese  concern.  Besides,  the  controversy 
between  Japan  and  China  hinges  on  the  voidance  or 
vaHdity  of  these  treaties,  and  the  question  of  vahd- 
ity  of  international  agreements  is  a  question  of  In- 
ternational Law,  which  can  be  best  decided  Jby  all 
while  the  subject-matter/involved  in  the  dispute  con- 
the  civilised  nations  in  the  world  Ih  other  words, 
cems  primarily  China  and  Japail^only,  the  principle 
with  which  the  dispute  is  to  be  settled  is  of  uni- 
versal interest. 

Studied  from  the  point  of  view  of  International 
Law,  the  Chino-Japanese  treaties  of  1915  are  void, 
on  a  good  many  grounds,  some  of  which  may  appear 
extravagant,  but  some  are  undoubtedly  unanswera- 
ble. Among  these  grounds  may  be  mentioned  (1) 
lack  of  legislative  sanction,  (2)  vital  change  of  cir- 
cumstances under  which  they  were  entered  into, 
(3)  disappearance  of  one  of  their  objects,  (4)  con- 
flict with  the  existing  treaties,  (5)  violation  of  the 
Open  Door  principle,  (6)  inconsistency  with  the 
Covenant  of  the  League  of  Nations,  and  (7)  in- 
compatibility with  China's  sovereignty  and  her  right 
of  self-preservation  and  self -development.  These 
are  the  principal  grounds;  there  are  other  political, 
legal,  and  moral  reasons  which  will  enter  into  con- 
sideration.   At  the  Peace  Conference  at  Versailles, 


14    THE  CHINO-JAPANESE  TREATIES 

the  Chinese  delegates  urged  the  abrogation  of  these 
treaties : 


"Because  these  treaties  are  and  constitute  one  entire 
transaction  or  entity  arising  out  of  the  war  and  they 
attempt  to  deal  with  matters  whose  proper  determina- 
tion is  entirely  a  right  and  interest  of  the  Peace 
Conference ; 

"Because  they  contravene  the  Allied  formula  of 
justice  and  principles  now  serving  as  the  guiding 
rules  of  the  Peace  Conference  in  its  task  of  working 
out  a  settlement  of  the  affairs  of  nations  in  order  to 
prevent  or  minimise  the  chances  of  war  in  the  future ; 

"Because,  specifically,  they  violate  the  territorial 
integrity  and  political  independence  of  China  as  guar- 
anteed in  the  series  of  conventions  and  agreements 
severally  concluded  by  Great  Britain,  France,  Russia 
and  the  United  States  and  Japan; 

"Because  they  were  negotiated  in  circumstances  of 
intimidation  and  concluded  under  the  duress  of  the 
Japanese  ultimatum  of  May  7,   1915;  and 

"Because  they  are  lacking  in  finality,  being  so  re- 
garded by  Japan  who  sought  to  make  them  final  by 
negotiating — before  China  was  suffered  to  enter  the 
war  in  association  with  the  Allies  and  the  United 
States — a  set  of  secret  agreements  at  variance  with 
the  principle  accepted  by  the  Belligerents  as  the  basis 
of  the  peace  settlement." 

The  Peace  Conference  at  Versailles  has  become 
history.  China  now  looks  forward  to  the  Washing- 
ton conference,  perhaps,  as  another  opportunity  for 


OF  MAY  25,  1915  15 

considering  the  validity  of  the  1915  treaties.  Will 
the  Washington  conference  take  up  this  trouble- 
some question?  And  if  so,  will  the  conference  un- 
dertake to  abrogate  the  treaties  under  consideration  ? 
It  is  perhaps  safe  to  answer  the  first  question  in  the 
affirmative;  the  second  question  it  is  difficult  to 
answer  one  way  or  another. 


II 

LACK   OF   LEGISLATIVE   CONCURRENCE 

THE  so-called  Chino-Japanese  treaties  of  1915 
are  null  and  void  ab  origine  for  the  simple 
reason  that  they  have  never  been  approved 
or  ratified  by  the  Parliament  of  the  Republic  of 
China.  The  National  Assembly,  as  the  Chinese  par- 
liament is  called  in  the  Provisional  Constitution  of 
Nanking,  was  not  consulted  in  the  conclusion  of 
these  treaties;  and  they  have  never  since  been  sub- 
mitted for  approval  or  ratification  to  any  other 
legitimate  legislative  body  that  the  exigency  of  in- 
ternal politics  has  called  into  existence  since  they 
were  concluded  in  May,  1915. 

According  to  the  Provisional  Constitution  passed 
at  Nanking,  January,  1912,  which  was  in  force  at 
the  time  of  the  conclusion  of  these  "treaties"  on 
May  25,  1915,  it  was  stipulated  in  Article  XXXV, 
Chapter  IV,  that  "the  Provisional  President  shall 
have  power,  with  the  concurrence  of  the  National 
Assembly,  to  declare  war  and  conclude  treaties." 
It  must  be  remembered  that  this  Provisional  Con- 
stitution has  remained  in  force,  and  will  remain  in 
force,  until  a  permanent  constitution  can  be  drafted 
and  completed,  and  passed  by  the  parliament  to  take 

16 


THE  CHINO-JAPANESE  TREATIES       17 

its  place.  For  the  time  being,  therefore,  the  Pro- 
visional Constitution  of  Nanking,  whatever  might 
be  said  about  it  as  to  its  defects,  has  remained  the 
supreme  law  of  the  Chinese  Republic.  All  China's 
international  dealings,  as  well  as  her  domestic  ques- 
tions, must  be  governed  and  settled  in  accordance 
with  this  supreme  law  of  the  land.  Any  interna- 
tional understanding  or  agreement  which  the  Chi- 
nese Government  enters  into  with  the  foreign 
Powers  in  the  future,  or  which  it  has  entered  into 
in  the  past,  must,  in  order  to  be  constitutional  and 
valid,  have  the  concurrence  of  the  National  Assem- 
bly, or  any  other  legitimately  and  constitutionally 
organised  legislative  body  of  the  Republic.  On  the 
one  hand,  it  is,  therefore,  unconstitutional  for  the 
Chinese  Government  to  make  any  international 
agreement  without  the  concurrence  of  the  legisla- 
tive organ,  and  on  the  other  hand,  all  the  agreements 
and  treaties  that  are  or  have  been  so  entered  into, 
are  and  ought  to  be  null  and  void.  Commenting 
on  the  treaty-making  power  of  a  State,  a  well- 
known  American  authority  on  International  Law 
makes  this  observation,  which  is  not  only  apropos, 
but  also  explains  very  succinctly  the  fundamental 
reason  why  a  treaty  concluded  without  the  consti- 
tutional sanction  of  a  State  is  not  binding  upon  that 
State:  **In  states  having  a  monarchical  form  of 
government  the  treaty-making  power  is  one  of  the 
prerogatives  of  the  crown;  in  states  having  repub- 
lican institutions  it  is  exercised  by  the  executive, 


18    THE  CHINO-JAPANESE  TREATIES 

either  directly  or  subject  to  the  approval  of  some 
branch  of  the  legisative  department  of  the  govern- 
ment. This  is  the  case  in  the  United  States.  The 
constitution  and  laws  of  every  state  define  the  treaty- 
making  power,  and  determine  what  restrictions,  if 
any,  are  to  be  placed  upon  its  exercise;  and  any 
agreements  undertaken  in  excess  of  these  limita- 
tions are  unauthorised  and  void"  (George  B.  Davis, 
"The  Elements  of  International  Law,"  Third  Edi- 
tion, p.  226).  It  may  be  added  that  this  is  also  the 
case  in  China,  where,  nominally,  at  least,  a  repub- 
lican government  obtains. 

The  opinion  here  quoted  is  supported  by  all  in- 
ternational jurists  of  recognised  authority.  Kluber 
asserts  that  public  treaties  can  be  valid  only  when 
they  are  concluded  "in  a  manner  conformable  to 
the  constitutional  laws  of  the  State."  Wheaton 
holds  that  the  constitution  of  every  particular  State 
"determines  in  whom  resides  the  authority  to  ratify 
treaties  negotiated  and  concluded  with  foreign 
powers,  so  as  to  render  them  obligatory  upon  the 
nation."  Professor  L.  Oppenheim,  a  well-known 
English  authority  on  International  Law,  says  that, 
although  the  sovereign  of  a  State  is  generally  recog- 
nised as  exercising  the  treaty-making  power,  this 
power  is  often  limited  by  the  constitution  of  the 
State,  which  is  "of  importance  for  the  Law  of  Na- 
tions." "Such  treaties  concluded  by  these  heads 
(of  States)  or  representatives  authorised  by  these 
heads  as  violate  constitutonal  restrictions  are  not 


OF  MAY  25,  1915  19 

real  treaties  and  do  not  bind  the  States  concerned, 
because  the  representatives  have  exceeded  their 
powers  in  concluding  the  treaties.'* 

Indeed,  it  may  be  said  that  the  constitutional  limi- 
tation upon  the  treaty-making  power  of  the  execu- 
tive is  a  common  feature  of  all  democratic  institu- 
tions. On  the  one  hand,  it  does  not  only  restrict  the 
power  of  the  executive  but  also  gives  a  voice  to  the 
people  in  the  matters  of  international  agreements. 
On  the  other  hand,  this  limitation  seeks  to  avoid 
secret  understandings  and  agreements  which  usually 
characterise  the  foreign  policy  of  an  autocratic  gov- 
ernment and  remove  the  danger  of  "selling  the  whole 
countries  by  means  of  treaties."  China  is  by  no 
means  the  only  country  which  has  such  constitu- 
tional limitations  upon  the  treaty-making  power  of 
its  executive.  What  is  provided  for  in  the  Nanking 
Provisional  Constitution  is  modelled  upon  the  con- 
stitutions of  the  western  Republics.  Thus,  accord- 
ing to  the  eighth  and  ninth  articles  of  the  French 
constitution  of  July,  1875,  it  was  provided:  "The 
President  of  the  RepubHc  (France)  shall  negotiate 
and  ratify  treaties.  He  shall  give  information  re- 
garding them  to  the  Chambers  as  soon  as  the  inter- 
ests and  safety  of  the  State  permit.  Treaties  of 
peace  and  commerce,  treaties  which  involve  the 
finances  of  the  State,  those  relating  the  person  and 
property  of  French  citizens  in  foreign  countries, 
shall  be  ratified  only  after  having  been  voted  by 
the  two  Chambers.     No  cession,  exchange,  or  an- 


20    THE  CHINO-JAPANESE  TREATIES 

nexation,   of  territory  shall  take  place  except  by 
virtue  of  law." 

Similar  restriction  is  also  found  in  the  Constitu- 
tion of  the  United  States.  Thus,  according  to  the 
second  article  of  the  second  section  of  the  Constitu- 
tion, the  President  "shall  have  power,  by  and  with 
the  advice  and  consent  of  the  Senate,  to  make  trea- 
ties, provided  two-thirds  of  the  Senators  present 
concur."  A  treaty  is  null  and  void  if  it  is  made 
without  the  advice  and  consent  of  the  Senate,  or, 
after  conclusion,  if  it  is  not  approved  by  two-thirds 
of  the  Senate.  Of  course,  executive  understandings 
and  agreements  such  as  the  Root-Takahira  "agree- 
ment" and  the  Lansing-Ishii  "agreement,"  which 
do  not  possess  the  validity  of  an  international 
treaty,  do  not  require  the  senatorial  approval 
or  consent.  It  is  interesting  to  observe  that  the 
Senate  of  the  United  States  has  jealously  guarded 
its  constitutional  prerogative  in  treaty-making,  and 
has  frequently  refused  to  give  its  sanction  to  trea- 
ties concluded  by  the  executive  and  signed  by  the 
official  representatives  of  the  United  States.  In 
1911,  for  instance,  it  refused  its  assent  to  a  treaty 
of  general  arbitration  with  Great  Britain  on  the 
ground  that  it  called  into  question  the  sovereignty 
of  the  United  States.  In  1920,  it  refused  to  ratify 
without  amendments  the  Treaty  of  Peace  of  Ver- 
sailles, which  was  negotiated  by  President  Wilson 
himself,  and  signed  by  him  and  other  American 
delegates  to  the  Peace  Conference.    These  instances 


OF  MAY  25,  1915  21 

serve  to  emphasise  the  point  that  when  the  treaty- 
making  power  of  a  State  is  placed  in  different  hands, 
treaties  entered  into  by  that  State,  in  order  to  be 
valid,  must  be  approved  by  all  institutions  enjoying 
the  treaty-making  power.  In  other  words,  any  in- 
ternational agreement  that  one  State  enters  into  with 
another,  must  meet  the  constitutional  requirements 
of  both  contracting  parties  in  order  to  be  binding 
upon  them. 

Now  coming  back  to  the  question  of  the  so-called 
treaties  which  China  and  Japan  had  entered  into  in 
May,  1915,  it  is  hardly  necessary  to  say  that  they 
were  concluded  without  the  concurrence  of  China's 
National  Assembly,  the  only  legitimate  legislative 
body  of  the  Republic.  The  Twenty-one  Demands 
(later  increased  to  twenty-f our) ,  of  which  the 
Chino-Japanese  treaties  were  the  result,  were 
pressed  upon  the  Chinese  Government  with  absolute 
secrecy.  The  Legislature,  which  was  then  in  session 
in  Peking,  was  not  at  all  informed  or  consulted  in 
the  negotiation  of  these  demands,  or  in  the  conclu- 
sion of  these  ''treaties" ;  and  since  their  conclusion, 
they  have  never  been  submitted  to  the  Legislature 
for  approval,  as  required  by  the  Constitution  of  the 
country.  Obviously,  they  were  concluded  without 
the  neccessary  "concurrence"  of  the  National  As- 
sembly. Now,  in  point  of  law,  it  may  be  asked: 
Can  China  be  bound  by  these  "treaties"  which  were, 
in  the  first  place,  concluded  in  violation  of  the  Con- 
stitution of  the  Republic,  and  secondly,  which  have 


22     THE  CHINO-JAPANESE  TREATIES 

never  been  approved  by  the  Chinese  Legislature? 
To  this  question,  there  can  be  but  one  answer.  But 
the  question  can  be  best  answered  by  asking  an- 
other :  Can  the  United  States,  for  instance,  be  bound 
by  the  Treaty  of  Peace  of  Versailles,  which  was 
undeniably  signed  by  the  Chief  Executive  of  the 
United  States  and  other  American  delegates  to  the 
Peace  Conference,  but  which  has  never  since  been 
ratified  by  the  Senate?  Or,  can  France  be  bound 
by  a  treaty,  which  is  not  voted  upon  by  the  two 
Chambers  ?  Or,  can  any  State  be  bound  by  a  treaty, 
which  is  entered  into  contrary  to  its  constitutional 
requirements?  The  answer  is  a  decisive  "no/'  In- 
asmuch as  the  treaties  of  1915  were  concluded  with- 
out the  necessary  ''concurrence"  of  the  National  As- 
sembly, they  are,  from  the  point  of  law  and  usage, 
no  more  binding  upon  China  than  the  Treaty  of 
Peace  of  Versailles  is  binding  upon  the  United 
States. 

If  it  were  argued  that,  in  negotiating  the  Twenty- 
one  Demands  with  China  and  the  treaties  of  1915, 
Japan  was  not  supposed  to  take  cognisance  of  the 
constitutional  restrictions  of  the  Chinese  Republic, 
it  could  only  be  said  that  this  argument  could  not 
hold  water.  Opinion  and  usage  are  all  against  it. 
Qui  cum  alio  contrahit,  vel  est,  vel  debet  esse  non 
ignarus  conditionis  ejus.  "He  who  contracts  with 
another  knows,  or  ought  to  know,  his  condition." 
When  the  Constitution  of  the  United  States,  for 
instance,  provides  any  treaty  or  convention  made 


OF  MAY  25,  1915  23 

by  its  diplomatic  representatives  cannot  become 
binding  until  it  has  been  ratified  by  the  Senate,  there 
can  be  no  question  that  "the  other  contracting  party 
is  charged  with  the  duty  of  informing  himself  of 
the  extent  of  the  powers  of  those  with  whom  he 
negotiates."  Diplomatic  agents,  it  may  be  laid  down 
as  a  general  rule,  who  are  engaged  in  treaty  negotia- 
tion, are,  for  their  own  protection,  forced  to  ex- 
amine the  constitutional  limitations  of  those  repre- 
sentatives with  whom  they  have  to  deal.  Indeed, 
it  is  almost  the  duty  of  the  State  to  take  reasonable 
care  to  inform  itself  as  to  the  limitations  and  re- 
strictions found  in  the  constitution  or  other  funda- 
mental laws  of  the  other  State,  with  which  a  treaty 
is  to  be  made.  Ignorance  is  no  excuse,  no  more 
than  it  is  before  law.  Properly  speaking,  therefore, 
Japam.  or  any  other  Power  or  Powers,  in  entering 
into  any  conventional  understanding  with  China, 
must  know  the  extent  to  which  the  latter  is  limited 
by  her  constitution  in  the  exercise  of  the  treaty- 
making  power.  Failure  to  take  due  notice  of  this 
limitation  imposed  upon  her  by  the  fundamental  law 
of  the  land  vitiates  the  Chino- Japanese  treaties  of 
1915. 

Now,  the  domestic  politics  of  the  Chinese  Re- 
public has  undoubtedly  complicated  its  international 
relations.  Those  who  like  to  consider  the  Chino- 
Japanese  treaties  as  valid,  even  from  the  standpoint 
of  the  Chinese  Constitution,  imagine  themselves  to 
be  on  the  solid  ground,  when  they  point  out  that, 


24    THE  CHINO-JAPANESE  TREATIES 

at  the  time  of  the  conclusion  of  these  treaties,  the 
Nanking  Provisional  Constitution  was  no  longer  in 
force,  and  that  the  National  Assembly  had  been  dis- 
solved. On  November  4,  1913,  President  Yuan 
Shih-k'ai  ordered  the  immediate  dissolution  of  the 
People's  Party  and  the  expulsion  of  its  members  in 
the  Parliament.  "The  effect  of  this  step  was  to 
unseat  more  than  half  the  members  of  the  Parlia- 
ment and  to  deprive  it  of  the  quorum  necessary  for 
the  transaction  of  business."  On  January  10,  1914, 
the  Assembly  was  formally  dissolved.  Following 
the  dissolution,  a  series  of  measures  were  proclaimed 
by  Presidential  mandates,  each  of  which  tended  to 
strengthen  and  consolidate  his  own  power.  The 
creation  of  a  "Political  Council"  with  the  members 
appointed  by  the  President  himself  was  the  first  of 
the  series.  This  Political  Council  recommended  the 
President  "to  call  into  being  an  elected  assembly." 
On  March  18,  1914,  the  "Constitutional  Council," 
which  was  supposed  to  be  an  elected  assembly,  held 
its  first  session  in  Peking.  The  body  was  named 
"Constitutional  Council"  for  the  simple  reason  that 
its  main  duty  was  to  draw  up  a  constitution  to  take 
the  place  of  the  Provisional  one.  Within  six  weeks 
the  Council  had  drawn  up  the  so-called  "constitu- 
tional compact,"  or  "Amended  Provisional  Consti- 
tution of  the  Republic  of  China,"  which  was,  it  has 
since  been  known,  largely  the  work  of  Dr.  Frank 
Johnson  Goodnow,  then  "constitutional  adviser"  to 
the  Chinese  Government.    And  on  May  1,  the  "con- 


OF  MAY  25,  1915  25 

stitutional  compact"  was  promulgated.  In  point  of 
the  fact,  therefore,  it  is  quite  true  to  say  that  the 
National  Assembly  had  ceased  to  exist,  and  that  the 
Nanking  Provisional  Constitution  had  been  replaced 
by  the  amended  one. 

On  the  other  hand,  a  few  vital  points  must  not 
be  lost  sight  of.  In  the  first  place,  the  coup  d'etat 
of  November  4,  1913,  was  illegal  in  itself,  for  Presi- 
dent Yuan  Shih-k'ai  had  no  constitutional  power  to 
dissolve  a  political  party  or  to  expel  its  members 
from  the  Parliament  if  they  were  duly  elected.  The 
final  dissolution  of  the  National  Assembly  was,  of 
course,  also  illegal,  for  it  could  not  be  arbitrarily 
dissolved  by  the  President.  The  series  of  measures 
which  were  enacted  by  President  Yuan  with  the 
view  to  strengthening  his  own  power  were  so  many 
more  violations  of  the  Provisional  Constitution. 
And  then  the  so-called  "constitutional  compact," 
designed  ostensibly  to  take  the  place  of  the  Nanking 
Provisional  Constitution,  was  drafted  and  promul- 
gated with  no  other  end  in  view  than  that  of  making 
Yuan  Shih-k'ai  the  Emperor  of  China.  The  "com- 
pact" was,  therefore,  not  only  unconstitutional  and 
illegal,  but  also  fundamentally  opposed  to  the  spirit 
and  letter  of  the  Constitution  of  the  Republic.  It  is 
quite  correct  to  say  that  neither  the  "compact"  nor 
the  legislature  called  into  existence  nominally  to  take 
the  place  of  the  National  Assembly  was  designed  in 
the  spirit  of  the  Provisional  Constitution.  It  is  no 
wonder  that,  with  the  subsequent  death  of  President 


26    THE  CHINO-JAPANESE  TREATIES 

Yuan  Shih-k*ai  on  June  6,  1916,  all  these  legislative 
innovations  died  with  him.  They  could  not  have 
taken  the  place  of  the  Provisional  Constitution  and 
Parliament. 

How,  it  may  be  asked,  could  legislative  approval 
be  obtained  for  the  Chino-Japanese  treaties  of  1915, 
inasmuch  as  the  National  Assembly  had  been  dis- 
solved, either  in  accordance  with  the  Constitution  or 
otherwise  ? 

The  question  is  highly  pertinent,  but  there  is  no 
getting  away  from  the  fact  that,  when  the  Constitu- 
tion of  the  country  requires  the  approval  of  the  legis- 
lature for  international  treaties  it  enters  into  with 
other  countries,  they  can  never  become  binding 
without  the  said  approval.  If  the  legislature  is  not 
in  session  at  the  time  of  the  conclusion  of  a  treaty, 
it  is  understood  that  the  operation  of  the  treaty  is 
suspended  until  it  is  finally  approved  by  it.  If  the 
parliament  is  dissolved,  as  it  was  the  case  with  the 
National  Assembly  of  1915,  treaties  concluded  at 
the  time  must  be  submitted  for  approval  to  the  new 
legislature.  It  must  be  borne  in  mind  that  since  the 
coup  d'etat  of  November  4,  1913,  different  legisla- 
tive bodies  have  been  called  into  existence.  The 
"constitutional  compact"  of  1914,  though  funda- 
mentally at  variance  with  the  Nanking  Provisional 
Constitution,  provided  for  an  elected  House  of 
Legislature  (Li-fa-yuan)  and  a  Council  of  State 
(Tsanchengyuan).  The  Li-fa-yuan  was,  of  course, 
never  elected,  but  the  Council  of  State,  sitting  in  the 


OF  MAY  25,  1915  27 

capacity  of  the  Li-fa-yuan,  began  its  work  on  June 
30,  1914.  It  is  not  known  that  the  Chino- Japanese 
treaties  had  been  submitted  to  the  Council  of  State 
for  approval.  In  1916,  the  old  parliament,  the  Na- 
tional Assembly,  which  was  virtually  dissolved  by 
President  Yuan  Shih-k'ai  on  November  4,  1913,  was 
restored  after  his  death.  Vice-President  Li  Yuan- 
hung  succeeded  to  the  Presidency,  and  all  Yuan*s 
measures  were  regarded  as  null  and  void.  The  Pro- 
visional Constitution,  upon  the  convention  of  the  old 
parliament,  was  again  recognised  as  the  fundamental 
law  of  the  Republic.  It  is  not  known  that  during 
its  short  session  in  Peking  the  Chino- Japanese  trea- 
ties of  1915  had  been  submitted  to  the  National 
Assembly  for  approval.  Unfortunately,  the  same 
Assembly  was  again  dissolved,  in  June,  1917,  and 
again  illegally,  but  this  time  by  President  Li  Yuan- 
hung  who  was  under  the  pressure  of  the  military 
leaders  in  Peking.  The  military  men  were  anxious 
to  get  into  their  hands  the  reins  of  the  government 
by  getting  China  to  participate  in  the  European 
War;  as  the  majority  of  the  National  Assembly  then 
in  session,  mostly  Kuomingtang  men,  were  strongly 
and  unalterably  opposed  to  China's  participation,  the 
military  men  could  not  see  their  wish  realised  except 
by  forcing  the  hands  of  the  President.  This  second 
dissolution  of  the  National  Assembly  has  been 
directly  responsible  for  the  internal  strugggle  in 
China  for  the  last  four  years.  The  majority  of  its 
members,  largely  Koumingtang  men,  went  to  Can- 


28    THE  CHINO-JAPANESE  TREATIES 

ton  immediately  after  the  second  dissolution  and 
began  its  extraordinary  session  there,  on  May  18, 
1918.  A  new  parliament  was  organised  in  Peking 
in  the  meantime,  which  elected  Hsu  Shih-chang 
President.  It  is,  therefore,  incorrect  to  say  that 
China  has  had  no  parliament  since  November  4, 
1913.  The  argument  that  no  legislative  approval 
could  be  obtained  falls  to  the  ground  when  it  is  re- 
membered that  the  Chino-Japanese  treaties  of  1915 
have  never  been  approved  by  any  of  the  above  men- 
tioned legislative  bodies.  On  the  contrary,  the  Na- 
tional Assembly,  upon  its  restoration  in  Peking  after 
the  death  of  President  Yuan,  denounced  the  Twenty- 

I  .one  Demands  and  the  1915  agreements.     This  de- 
.nunciation  was  repeated  when  it  was  convoked  in 

/  Canton  in  1918. 

Apparently,  the  Japanese  Government  was  at  the 
time  well  aware  of  the  fact  that  such  treaties  could 
stand  no  chance  of  being  duly  ratified  by  the  Chinese 
parliament  as  provided  for  in  the  Constitution  of  the 
Republic.  So  by  a  clever  stroke  of  diplomacy, 
Japan  attempted  to  reduce  the  Constitution  of  the 
Chinese  Republic  to  a  mere  scrap  of  paper.  It  was 
stipulated  in  either  of  the  treaties :  "The  present 
treaty  shall  come  into  force  on  the  date  of  its  sig- 
nature. The  present  treaty  shall  be  ratified  by  His 
Excellency  the  President  of  the  Republic  of  China 
and  His  Majesty  the  Emperor  of  Japan,  and  the 
ratifications  thereof  shall  be  exchanged  at  Tokio  as 
soon  as  possible."    By  this  stipulation,  Japan  sought 


OF  MAY  25,  1915  29 

to  leave  the  power  of  ratification  into  the  hands  of 
the  President  alone,  thus  totally  ignoring  the  Con- 
stitution of  the  Republic,  which  requires  the  con- 
currence of  the  National  Assembly.*  It  may  be 
pointed  out  here  that  a  provision  of  this  kind  is  of 
no  legal  value.  It  cannot  be  valid,  and  it  cannot 
be  binding  upon  China,  for  the  simple  reason  that  it 
is  not  in  conformity  with  the  Constitution,  the 
fundamental  law  of  the  Republic.  It  has  been  a 
recognized  principle  of  international  law  and  usage 
that  agreements  and  conventions,  in  order  to  be 
valid  and  binding  upon  a  State,  should  be  in 
conformity,  not  only  with  the  law  of  nations, 
but  also  with  the  constitution  of  that  State.  This 
principle  invalidates  and  renders  void  all  trea- 
ties and  agreements  which  are  at  variance  with 
it.  "The  constitution  is  to  prevail  over  a  treaty 
where  the  provisions  of  the  one  come  in  conflict 
with  the  other."  Secretary  Blaine,  in  a  communica- 
tion to  Mr.  Chen  Lan  Pin,  under  the  date  of  March 
25,    1881,   strongly  emphasised  the  point  that   "a 

*  Even  in  the  "constitutional  compact,"  legislative  approval 
is  provided  for.  The  saving  clause  is  found  in  Article  XXV 
of  the  Third  Chapter  of  the  compact,  which  reads:  "The 
President  makes  treaties.  But  the  approval  of  Li-fa-yuan 
(the  Senate)  must  be  secured  if  the  articles  should  change 
the  territories  or  increase  the  burdens  of  the  citizens."  Now, 
there  cannot  be  the  slightest  doubt  that  the  Chino-Japanese 
treaties  of  1915  do  increase  the  burdens  of  the  Chinese  citi- 
zens and  do  involve  territorial  changes.  It  is  not  known  that 
the  approval  of  Li-fa-yuan  for  these  treaties  has  ever  been 
secured.  Tsan-cheng-yuan  (the  Council  of  State)  was,  of 
course,  sitting  in  the  capacity  of  Li-fa-yuan,  the  latter  being 
never  elected. 


30    THE  CHINO-JAPANESE  TREATIES 

treaty,  no  less  than  the  statute  law,  must  be  made 
in  conformity  with  the  constitution,  and  where  a 
provision  in  either  a  treaty  or  a  law  is  found  to  con- 
travene the  principles  of  the  constitution,  such  pro- 
vision must  give  way  to  the  superior  force  of  the 
constitution,  which  is  the  organic  law  of  the  Re- 
public, binding  alike  on  the  Government  and  the 
nation/' 

The  point  is  beyond  doubt,  that  the  Chino- 
Japanese  treaties  of  1915,  inasmuch  as  they  have 
never  been  approved  by  the  Chinese  parliament, 
can  not  be  binding  upon  China.  Nominally,  they 
were  ratified  on  June  8,  1915,  by  President  Yuan 
Shih-k'ai  himself.  As  the  President  could  have  no 
power  of  ratifying  international  agreements  without 
the  concurrence  of  the  legislature,  such  ratification 
as  President  Yuan  had  given  was  ultra  vires  and 
absolutely  unconstitutional.  Without  the  sanction 
of  the  National  Assembly,  Yuan's  ratification  could 
bind  China  to  these  treaties  no  more  than  the  Presi- 
dent of  the  United  States  could  by  his  ratification 
bind  his  country  to  any  international  agreement 
without  the  approval  and  consent  of  the  Senate. 


Ill 

CONFLICT  WITH  EXISTING  TREATIES 

IN  the  previous  chapter  we  have  pointed  out  that 
the  Chino-Japanese  treaties  of  May  25,  1915, 
are,  from  the  constitutional  point  of  view,  null 
and  void  ah  initio.  Fortunately  for  China,  she  has 
more  than  her  own  Constitution  to  fall  back  upon. 
The  treaties  in  question  are  not  only  in  violation  of 
the  Constitution  of  the  Republic  of  China,  but  also 
in  conflict  with  a  number  of  existing  international 
treaties  and  agreements,  of  which  we  can  mention  j 
the  Manchurian  Convention  of  December  22,  1905,  I 
between  China  and  Japan,  the  Anglo- Japanese  alli- 
ance of  1911,  and  the  numerous  agreements  and 
understandings  on  the  Open  Door  policy  in  China. 
It  is  a  recognised  principle  of  International  Law,  as 
well  as  it  is  the  established  practice  among  the  family 
of  nations,  that  treaties  entered  into  in  disregard, 
and,  therefore,  in  violation  of  the  existing  ones  are 
null  and  void. 

Following  the  chronological  order  of  the  different 
agreements  with  which  the  Chino-Japanese  treaties 
are  in  conflict,  let  us  first  take  up  the  so-called  Man- 
churian Convention.  The  said  agreement  was  en- 
tered into  between  China  and  Japan,  December  22, 
1905,  for  the  purpose  of  securing  the  consent  of  the 

31 


32    THE  CHINO-JAPANESE  TREATIES 

Chinese  Government  to  the  transfer  to  Japan  of  the 
Russian  concessions  in  South  Manchuria  as  ar- 
ranged in  the  Russo-Japanese  treaty  of  peace.  The 
second  article  of  the  Convention  reads:  "The  Im- 
perial Japanese  Government  engage  that  in  regard 
to  the  leased  territory  as  well  as  in  the  matter  of 
railway  construction  and  exploitation,  they  will,  as 
far  as  circumstances  permit,  conform  to  the  original 
agreements  concluded  between  China  and  Russia." 
This  was  the  specific  undertaking  by  Japan  in 
1905  when  she  endeavoured  to  secure  China's  requi- 
site consent  to  the  transfer  of  the  Russian  rights 
and  interests  to  the  Japanese  hands.  Keeping  in 
mind  the  foregoing  provision,  and  reading  the  text 
of  the  Chino-Japanese  treaties  of  May  25,  1915,  to- 
gether with  the  notes  attached,  one  cannot  fail  to 
notice  the  apparent  inconsistency  between  Japan's 
words  and  her  deeds.  Her  engagement  in  the  Man- 
churian  Convention  was  not  fulfilled.  On  the  con- 
trary, it  was  totally  disregarded  and  violated.  In- 
stead of  conforming  to  the  original  agreements  con- 
cluded between  China  and  Russia  **in  regard  to  the 
leased  territory  as  well  as  in  the  matter  of  railway 
construction  and  exploitation"  in  South  Manchuria, 
Japan  practically  made  a  scrap  of  paper  of  this 
engagement,  when  she  extorted,  as  a  result  of  the 
Twenty-one  Demands,  the  following  agreement 
from  the  Chinese  Government :  "The  two  High  Con- 
tracting Parties  agree  that  the  term  of  lease  of  Port 
Arthur  and  Dalny  and  the  terms  of  the  South  Man- 


OF  MAY  25,  1915  33 

churian  Railway  and  the  Antung-Mukden  Railway, 
shall  be  extended  to  99  years."  It  is  to  be  recalled 
that  the  original  term  of  the  lease  was  for  25  years, 
and  the  South  Manchurian  Railway  was  to  be  re- 
deemed by  the  Chinese  Government  after  36  years 
from  the  date  on  which  the  traffic  was  opened. 
Now,  the  lease  was  given  an  additional  term  of  74 
years,  and  the  date  for  restoring  the  South  Man- 
churian Railway  to  China  shall  not  fall  due  until  in 
2002,  while  that  of  Antung-Mukden  Railway  in 
2007.  Such  arrangements  are  certainly  not  in  con- 
formity with  the  original  agreements  between  China 
and  Russia,  for  the  observance  of  which  Japan  had 
solemnly  promised  in  1905. 

Nor  are  such  arrangements  at  all  in  harmony 
with  the  provisions  of  the  Russo-Japanese  treaty  of 
July  4,  1910,  which  was  concluded  ostensibly  for  the 
purpose  of  maintaining  the  status  quo  in  South  Man- 
churia. We  can  easily  recall  that  the  treaty  was  a 
direct  answer  to  the  American  attempt  to  neutralise 
the  Manchurian  railways.  Philander  C.  Knox,  then 
Secretary  of  State,  essayed  to  save  Manchuria  from 
sinking  into  the  rank  of  a  Russo-Japanese  colony, 
by  converting  the  Russo-Japanese  owned  and  con- 
trolled railways  in  Manchuria  into  an  effective  eco- 
nomic instrument  to  be  put  in  the  hands  of  an  inter- 
national  body  for  the  development  of  the  said  region. 
This  bold  attempt  was  met  with  an  equally  bold 
answer  from  Russia  and  Japan.  The  Russo-Jap- 
anese treaty  of  1910,  concluded  on  July  4,  a  date 


34    THE  CHINO-JAPANESE  TREATIES 

which  is  of  unusual  significance  to  the  United 
States  and  to  the  American  people,  contains  the 
following  : 

"Article  II.  Each  of  the  High  Contracting  Parties 
engages  to  maintain  and  to  respect  the  status  quo  in 
Manchuria  as  it  results  from  all  the  treaties,  conven- 
tions or  other  arrangements  hitherto  concluded,  either 
between  Russia  and  Japan  or  between  these  two 
Powers  and  China.  Copies  of  the  aforesaid  arrange- 
ments have  been  exchanged  between  Russia  and 
Japan. 

"Article  III.  In  case  any  event  of  such  a  nature 
as  to  menace  the  above-mentioned  status  quo  should 
be  brought  about,  the  two  High  Contracting  Parties 
will  in  each  instance  enter  into  communication  with 
each  other,  for  the  purpose  of  agreeing  upon  the 
measures  that  they  may  judge  it  necessary  to  take 
for  the  maintenance  of  the  said  status  quo." 

This  convention  was,  nominally,  intended  to  re- 
place the  Russo-Japanese  convention  of  July  30, 
1907,  in  which  both  Powers  also  engaged  to  "sus- 
tain and  defend  the  maintenance  of  the  statics  quo 
and  respect  for  this  principle  by  all  the  pacific  means 
within  their  reach."  As  a  matter  of  fact,  it  was 
meant  to  be  an  answer  to  the  American  proposal  for 
the  neutralisation  of  the  railways  in  Manchuria, 
which  was  regarded  as  threatening  the  privileged 
status  that  both  Japan  and  Russia  were  then  enjoy- 
ing in  Manchuria. 

Now,  the  question  may  be  raised :  if  the  attempted 


[^ 


OF  MAY  25,  1915  35 

neutralisation  of  Manchurian  railways  was  destined 
to  disturb  the  status  quo  in  Manchuria,  is  it  not 
nearer  to  the  truth  to  say  that  the  extension  of  the 
terms  of  the  leased  territory  as  well  as  of  the  South 
Manchurian  Railway  and  the  Antung-Mukden  Rail- 
way has  radically  altered  the  stattis  quo  which  Japan 
and  Russia  were,  in  1907  as  in  1910,  so  anxious  to 
preserve?  Besides  the  extension  of  the  term  of  the 
leases,  we  notice  that  by  the  treaties  of  1915  Jap- 
anese subjects  have  acquired  the  right  to  "investi- 
gate and  select  mines  in  the  mining  areas  in  South 
Manchuria"  and  to  operate  a  number  of  coal  and 
iron  mines  specified  in  one  of  the  diplomatic  notes 
exchanged,  and  attached  to  the  treaties.  "Japanese 
subjects  in  South  Manchuria  may,  by  negotiation, 
lease  land  necessary  for  erecting  suitable  buildings 
for  trade  and  manufacture  or  for  prosecuting  agri- 
cultural enterprises,"  and  they  shall  be  free  "to  re- 
side and  travel  in  South  Manchuria  and  to  engage 
in  business  and  manufacture  of  any  kind  whatso- 
ever." These  are  the  economic  and  political  rights 
which  the  Russians  had  never  dreamed  of  in  Man- 
churia. For  the  Japanese  subjects  to  enjoy  them 
alone  would  give  them  such  a  preferable  treatment 
that  it  would  hardly  be  in  consonance  with  the  prin- 
ciple of  equal  opportuninty.  At  any  rate,  these 
privileges,  be  they  political  or  merely  economic  in 
nature,  and  the  position  which  Japan  would  occupy 
as  a  result  of  them,  would  be  a  radical  departure 
from  the  stattis  quo  of  1907,  or  from  that  of  1910, 


36    THE  CHINO-JAPANESE  TREATIES 

politically  and  economically.  Furthermore,  when 
the  Chino- Japanese  treaties  of  1915  were  concluded 
and  signed,  Russia  was  busily  engaged  in  the  war, 
and  it  is  doubtful  if  the  Russian  Government  had 
been  informed  of  the  negotiations  carried  on  in 
Peking  or  had  approved  of  the  treaties  when  they 
were  negotiated  and  became  known.  At  any  rate, 
should  Russia  so  choose,  she  can  hold  Japan  to 
account  for  this  alteration  of  the  precious  status  quo. 
More  important  is,  of  course,  the  consideration  of 
the  violation  of  the  Anglo-Japanese  alliance  of  July 
13,  1911.  Article  III  of  the  alliance  reads:  *The 
High  Contracting  Parties  agree  that  neither  of 
them  will,  without  consulting  the  other,  enter  into  a 
separate  agreement  with  another  power  to  the  preju- 
dice of  the  objects  described  in  the  preamble  of  this 
Agreement."  And  one  of  the  objects  described  in 
the  preamble  is  "The  preservation  of  the  common 
interests  of  all  powers  in  China  by  insuring  the 
independence  and  integrity  of  the  Chinese  Empire 
and  the  principle  of  equal  opportunities  for  the  com- 
merce and  industry  of  all  nations  in  China."  Here 
we  have  two  issues  raised :  one  is  that  Japan  under- 
takes not  to  enter  into  any  separate  agreement  with 
a  third  Power  to  the  prejudice  of  the  interests  of 
Great  Britain  as  outlined  in  the  alliance,  and  the 
other  is  that  both  Japan  and  Great  Britain  under- 
take to  preserve  the  independence  and  integrity  of 
China  and  the  principle  of  equal  opportunities  com- 
monly known  as  the  Open  Door  policy. 


OF  MAY  25,  1915  37 

In  the  light  of  the  facts  now  generally  known, 
we  are  sure  that  the  negotiation  of  the  Twenty-one 
Demands  which  were  largely  embodied  in  the  trea- 
ties of  1915  was  conducted  in  secret,  and  the  exact 
demands  were  not  made  known  to  the  British  Gov- 
ernment either  before  or  after  their  presentation  to 
the  Chinese  Government.  As  a  matter  of  fact,  when 
the  public  opinion  became  so  alarmed  over  the  nego- 
tiation in  Peking  and  when  the  Western  Powers 
began  to  inquire  officially  as  to  the  nature  of  those 
demands  which  formed  the  subject  of  negotiation, 
the  Japanese  saw  it  fit  to  notify  them  only  of  eleven 
demands,  concealing  the  other  ten  demands  which 
were  most  drastic  in  nature  and  were  in  open  con- 
flict with  the  American  and  British  interests  in 
China.  So  one  of  the  high  contracting  parties  of  ' 
the  Anglo- Japanese  alliance  entered  into  a  separate 
agreement  with  China,  without  consulting  the  other, 
which  was  to  all  intents  and  purposes  prejudicial  to 
the  common  interests  and  objects  agreed  upon  in 
the  alliance.  There  can  be  no  doubt  that  the 
Twenty-one  Demands  were  presented  to  the  Chinese 
Government  by  Japan  without  the  knowledge  of 
Great  Britain.  Although  she  had  the  right  to  be 
consulted  in  such  matters  according  to  the  stipula- 
tions of  the  Anglo-Japanese  alliance,  Great  Britain 
was  left  in  the  dark.  She  was  absolutely  ignored, 
and  she  was  denied  a  full  knowledge  of  the  demands 
when  they  became  generally  known.  Could  the 
treaties  arising  out  of  these  ignominious  demands, 


38    THE  CHINO-JAPANESE  TREATIES 

negotiated  in  secret  and  without  having  the  British 
Government  consulted  in  the  matter,  be  recognised 
as  valid?  Could  they  be  allowed  to  stand  as  they 
are  in  open  conflict  with  the  stipulations  of  the 
Anglo-Japanese  alliance  ? 

This  is  a  question  largely  for  Great  Britain  to 
decide.  If  she  should  elect  to  insist  upon  the  faith- 
ful observance  of  the  terms  of  the  alliance  by  her 
ally,  she  could  rightly  demand  that  the  Chino- 
Japanese  treaties  of  1915  arising  out  of  the  Twenty- 
one  Demands  which  were  kept  from  the  knowledge 
of  the  British  Government  for  some  time  at  least 
should  not  be  valid.  As  far  as  we  can  ascertain 
now,  and  according  to  the  facts  given  by  Professor 
E.  T.  Williams  to  the  Senate  Foreign  Relations 
Committee  on  August  22,  1919,  we  know  that 
Great  Britain  was  not  in  favour  of  the  execution  of 
these  Chino-Japanese  treaties.  Professor  Williams 
said  that  on  April  22,  1919,  President  Wilson, 
at  the  Peace  Conference,  sent  for  him  and  asked 
him,  which  of  the  proposed  alternatives  would  be 
less  injurious  to  China — the  transfer  of  the  German 
Shantung  rights  to  Japan,  or  the  execution  of  the 
Chino-Japanese  treaties  of  1915  growing  out  of  the 
notorious  Twenty-one  Demands.  When  Professor 
Williams  replied  that  he  hoped  that  neither  course 
would  be  found  necessary,  he  was  told  by  the  Presi- 
dent that  unfortunately  Great  Britain  and  France 
were  bound  by  previous  engagements  with  Japan  to 
support  her  claims  in  Shantung  and  that  Lloyd 


OF  MAY  25,  1915  39 

George  said  he  would  bow  to  the  Japanese  wishes 
only  on  consideration  that  the  1915  treaties  were 
executed.  We  can  therefore  safely  assume  that 
Great  Britain,  while  she  did  not  insist  on  the  abroga- 
tion of  the  1915  treaties  on  the  strength  of  the 
terms  of  the  Anglo- Japanese  alliance,  considered 
them  as  executed  as  a  quid  pro  quo  for  keeping  her 
pledge  with  Japan  in  regard  to  Shantung. 


IV 

CONFLICT  WITH  THE  OPEN  DOOR 
POLICY 

THE  fact  that  the  Twenty-one  Demands  were 
pressed  upon  China  without  the  knowledge 
of  the  British  Government,  and  that  the  re- 
sulting treaties,  unquestionably  prejudicial  to  the 
objects  of  the  Anglo-Japanese  alliance,  were  entered 
into  by  Japan  without  due  consultation  with  her 
ally  as  required  by  the  alliance,  is  a  matter  which 
concerns  Great  Britain  more  than  any  other  Power. 
Whether  or  not  the  Chino- Japanese  treaties  of  1915 
are  deemed  as  in  violation  of  the  terms  of  the  Anglo- 
Japanese  alliance  is  a  question  which  concerns  again 
mostly  with  Great  Britain.     China  cannot  insist  on 
(although  she  has  a  right  to  expect,  as  does  every 
other  nation  in  the  world),  the  faithful  observance 
of  the  terms  of  the  alliance  by  Japan,  while  Great 
Britain,  one  of  the  High  Contracting  Parties,  was 
willing  enough,  for  one  reason  or  another,  to  permit 
the  other  High  Contracting  Party  to  play  fast  and 
loose  with  it.     In  other  words,  although  the  viola- 
tion of  the  Anglo-Japanese  agreement  would  furnish 
sufficient  ground   for  the  abrogation  of  the   1915 
treaties,  China,  not  being  a  party  to  it,  has  but  an 
indirect  claim. 


.  THE  CHINO-JAPANESE  TREATIES       41 

On  the  other  hand,  when  we  come  to  the  consid- 
eration of  the  principle  of  equal  opportunity  and  the 
Open  Door  policy  in  China,  the  question  ceases  to 
be  purely  Anglo-Japanese.  The  Open  Door  pohcy, 
which  comprises  the  principle  of  economic  equality 
of  opportunity  for  all  Powers  in  China  and  of  her 
independence  and  territorial  integrity,  is  a  mighty 
issue  which  concerns  not  only  China  herself,  not 
only  Japan  and  Great  Britain,  but  also  the  United 
States,  France,  and  other  countries  which  have 
maintained  treaty  relations  with  China  and  which 
have  specifically  pledged  to  the  maintenance  of  that 
policy. 

It  is  to  be  recalled  that  the  Hay  notes  of  1899  and 
1900  and  the  principles  outlined  therein  were  ac- 
cepted by  France,  Great  Britain,  Germany,  Russia, 
Italy,  Austria-Hungary,  and  Japan — all  the  great 
Powers  who  have  had  vital  interests  in  the  Far  East 
in  general,  and  in  China  in  particular.  We  are,  of 
course,  not  going  back  to  the  days  when  the  most- 
favored-nation  treatment  reigned  supreme  in  China 
and  governed  her  dealings  with  the  foreign  Powers. 
We  are  only  taking  into  consideration  the  principle  \ 
of  equality  of  economic  and  commercial  opportunity, 
formulated  by  John  Hay,  American  Secretary  of 
State,  in  answer  to  the  international  scramble  for 
political  and  economic  concessions  in  China  towards 
the  end  of  the  nineteenth  century.  Beginning  with 
these  Hay  notes,  we  have  had  a  series  of  interna- 
tional understandings  and  agreements  which  have 


42    THE  CHINO-JAPANESE  TREATIES 

j  been  concluded  in  the  course  of  some  twenty  years 
with  the  ostensible  purpose  of  maintaining  the  inde- 
pendence and  territorial  integrity  of  China  and  the 
equality  of  opportunity  for  trade  and  commerce  in 
that  country.  The  Anglo-German  convention  of 
1900,  the  Anglo- Japanese  alliance  of  1902,  the 
Russo-Japanese  treaty  of  peace  of  1905,  the  second 
Anglo-Japanese  alliance  of  the  same  year,  the  Russo- 
Japanese  convention  of  1907,  the  Franco- Japanese 
convention  of  the  same  year,  the  Root-Takahira 
exchange  of  notes  of  1908,  the  Russo-Japanese 
agreement  of  1910,  the  third  Anglo-Japanese  alli- 
ance of  1911,  and  finally  the  Lansing-Ishii  exchange 
of  notes  of  1917,  are,  one  and  all,  designed,  at  least, 
ostensibly,  for  the  maintenance  of  the  territorial 
integrity  of  China  and  the  Open  Door  policy.  Now, 
it  remains  for  us  to  see  how  far  the  Chino-Japanese 
treaties  of  1915,  arising  out  of  the  notorious 
Twenty-one  Demands  are  in  open  conflict  with  these 
Open  Door  agreements,  and  how  far  they  have  vio- 
lated their  spirit.  It  is  scarcely  necessary  to  add 
here  that,  if  these  treaties  of  1915  have  violated  the 
Open  Door  principle  in  one  form  or  another,  they 
should  be  made  null  and  void.  The  interests  of  the 
western  Powers  in  China,  to  say  nothing  of  her  own 
interests  in  the  matter,  depend  much  upon  the  faith- 
ful maintenance  of  the  Open  Door  policy. 

We  have,  in  the  first  place,  a  specific  violation  of 
the  territorial  integrity  of  China  in  the  "exclusive 
concession"  which  Japan  is  to  have  at  Kiao-chow. 


OF  MAY  25,  1915  43 

According  to  the  notes  exchanged  between  China 
and  Japan  and  attached  to  the  treaties  of  1915,  re- 
specting the  restoration  of  the  German  leased  terri- 
tory in  Shantung,  "a  concession  under  the  exclusive 
jurisdiction  of  Japan  to  be  established  at  a  place  | 
designated  by  the  Japanese  Government"  was  one  of 
the  necessary  conditions  for  which  the  leased  terri- 
tory would  be  restored  to  China,  Now  it  is  clear 
as  daylight  that  this  desired  concession  is  running 
counter  to  the  principle  of  China's  territorial  integ- 
rity, the  maintenance  of  which  constitutes  the  most 
important  object  of  the  above-mentioned  interna- 
tional agreements.  The  concession  is  not  only  to  be 
"exclusive,"  but  it  is  also  to  be  "under  the  exclusive 
jurisdiction  of  Japan."  The  Chinese  Government 
will  have  nothing  to  say  as  to  where  the  concession 
is  going  to  be  established,  although  China  is  the  sov- 
ereign nation.  It  is  to  be  established  "at  a  place 
designated  by  the  Japanese  Government."  The  very 
idea  that  Japan,  a  friendly  neighbour  and  sup- 
posedly in  favour  of  the  maintenance  of  the  inde- 
pendence and  territorial  integrity  of  China,  is  to 
have  a  carte  blancltc  to  establish  an  exclusive  con- 
cession on  Chinese  territory  and  at  her  own  sweet 
will,  is  not  only  revolting,  not  only  infringing  upon 
China's  sovereignty,  but  also  absolutely  inconsistent 
with  the  numerous  pledges  of  the  Japanese  Govern- 
ment to  respect  the  Open  Door  principle.  There 
are  persons  who  believe  that  the  so-called  Open 
Door  policy  is  largely  a  commercial  policy  of  the 


44    THE  CHINO-JAPANESE  TREATIES 

foreign  Powers  for  equal  opportunity  in  trade  and 
commerce  in  China  and  that  it  has  nothing  to  do 
with  China's  independence  and  territorial  integrity. 
That  this  is  a  misconception  of  the  true  meaning  of 
the  policy  is  evident,  when  we  remember  that  if  the 
territorial  integrity  of  China  is  not  to  be  respected 
and  maintained,  where  can  have  the  foreign  Powers 
equal  opportimity?  The  whole  country  will  be  par- 
celled out,  and  the  independence  of  China  will  be  a 
thing  of  the  past.  It  is  evident,  therefore,  that  the 
Open  Door  means  territorial  integrity  of  China  first, 
and  equal  opportunity  second. 

The  more  we  study  the  language  of  the  provision, 
the  more  we  become  apprehensive  as  to  China's 
future  integrity.  "A  concession  tmder  the  exclusive 
jurisdiction  of  Japan  to  be  established  at  a  place 
designated  by  the  Japanese  Government" — the  lan- 
guage sounds  harmless  and  quite  innocent.  Yet 
there  is  a  sting  in  it  which  cannot  escape  even  the 
most  casual  observer.  Aside  from  the  obnoxious 
feature  that  the  concession  is  to  be  "exclusive"  and 
that  it  is  to  be  under  Japanese  jurisdiction,  there  is 
nothing,  not  a  word,  said  about  the  time  which  the 
concession  will  last  if  it  were  established.  It  may 
be  for  one  hundred  years  and  it  may  be  perpetual. 
"Owing  to  the  bitter  experiences  which  China  has 
sustained  in  the  past  in  connection  with  the  leased 
portions  of  her  territory,  it  has  become  her  settled 
policy  not  to  grant  further  leases  nor  to  extend  the 
term  of  those  now  in  existence,"  says  the  official 


OF  MAY  25,  1915  45 

statement  by  the  Chinese  Government  respecting  the 
Chinojapanese  negotiations  of  1915.  And  it  is  true 
that  the  situation  is  more  than  serious  when  we  re- 
member the  Japanese  holdings  in  South  Manchuria 
and  the  uses  the  Japanese  Government  has  been 
making  of  them.  Japanese  position  in  South  Man- 
churia, which  has  been  converted,  to  all  intents  and 
purposes,  a  Japanese  colony,  has  already  been  a 
serious  menace  to  the  territorial  integrity  of  China. 
It  remains  to  be  seen  whether  Manchuria  can  yet  be  ' 
saved.  Now,  for  Japan  to  establish  an  exclusive 
concession  "at  a  place  designated  by  the  Japanese 
Government"  is  to  put  Japan  in  a  position  which 
will  enable  her  to  threaten  the  Peking  Government 
as  the  pincers  threaten  a  nut.  The  proposed  con- 
cession will  not  only  be  an  imperium  in  imperio, 
with  which  China  has  been  burdened  already  too 
many,  but  will  also  be  a  perpetual  stronghold  for 
Japan  where  from  she  can  work  for  her  domination 
of  China.  Taking  the  situation  from  its  most  seri- 
ous aspect,  we  must  admit  that  the  question  is  not 
merely  one  of  the  violation  of  China's  territorial 
integrity.  It  is  a  problem  of  China's  future  exist- 
ence as  an  independent  nation. 

It  is  unnecessary  to  go  into  the  details  of  the  ques- 
tion. We  have  already  shown  how  the  provisions 
of  the  Chino-Japanese  treaties  of  1915  are  totally 
incompatible  with  China's  territorial  integrity  and 
her  future  safety.  As  to  the  principle  of  equal  op- 
portunity, there  are  a  number  of  evidences  to  show 


46    THE  CHINO-JAPANESE  TREATIES 

that  it  has  been  violated  or  deliberately  set  aside. 
We  can  point  to  the  second  article  of  the  "Treaty- 
respecting  South  Manchuria  and  Eastern  Inner 
Mongolia"  whereby  "Japanese  subjects  in  South 
Manchiyia  may  lease  land  necessary  for  erecting 
suitable  buildings  for  trade  and  manufacture  or  for 
prosecuting  agricultural  enterprises."  We  can 
point  to  the  third  article  of  the  same  treaty  whereby 
"Japanese  subjects  may  be  free  to  reside  and  travel 
in  South  Manchuria  and  to  engage  in  business  and 
manufacture  of  any  kind  whatsoever."  These  are 
the  rights  and  privileges  acquired  by  the  Japanese 
and  which  are  not  enjoyed  by  the  nationals  of  other 
treaty  Powers.  As  these  privileges  create  a  status 
for  Japan  which  is  far  above  that  of  the  other 
Powers,  they  are  absolutely  incompatible  with  the 
idea  of  equal  opportunity.  "Japan's  imconditional 
demand  for  the  privilege  of  inland  residence  accom- 
panied with  a  desire  to  extend  extra-territoriality 
into  the  interior  of  China  and  to  enable  Japanese 
subjects  to  monopolize  all  the  interests  in  South 
Manchuria,"  it  is  pointed  out  in  the  official  state- 
ment by  the  Chinese  Government  in  regard  to  the 
negotiations  of  the  Twenty-one  Demands  in  1915, 
"was  also  palpably  irreconcilable  with  tlie  principle 
of  equal  opportunity."  And  in  another  place,  the 
statement  says:  "The  demand  by  Japan  for  the 
right  of  her  subjects  in  South  Manchuria  to  lease 
or  own  land,  and  to  reside  and  travel,  and  to  engage 
in  business  or  manufacture  of  any  kind  whatever, 


OF  MAY  25,  1915  47 

was  deemed  by  the  Chinese  Government  to  obtain 
for  Japanese  subjects  in  this  region  a  privileged 
status  beyond  the  terms  of  the  treaties  existing  be- 
tween the  two  nations,  and  to  give  them  a  freedom 
of  action  which  would  be  a  restriction  of  China's 
sovereignty  and  a  serious  infringement  of  her  ad- 
ministrative rights." 

The  incompatibility  of  these  privileges  granted  to 
Japanese  subjects  with  the  principle  of  equal  op- 
portunity for  trade  and  commerce  in  China  can  be 
brought  out  in  still  bolder  relief  if  we  can  only 
imagine  what  use  the  Japanese  will  make  of  these 
privileges.  Now  Manchuria,  and  particularly  South 
Manchuria,  is  admittedly  the  richest  field  for  for- 
eign trade  in  China.  At  present,  in  fact,  for  the 
last  decade  or  so,  Japan  has  enjoyed  an  unusual 
position  because  of  the  transportation  facilities  in 
her  control  in  South  Manchuria,  and  the  preferen- 
tial measures  which  she  has  adopted  for  her  own 
nationals.  Now,  by  the  treaties  of  1915,  Japanese 
subjects  may  lease  land,  erect  buildings,  prosecute 
agricultural  enterprises,  and  in  addition,  they  shall 
be  free  to  travel  and  reside  in  South  Manchuria 
and  "to  engage  in  business  and  manufacture  of  any 
kind.*'  With  these  rights  and  privileges  in  their 
favour,  Japanese  merchants,  it  is  easy  to  see,  can 
run  out  all  the  foreign  competitors  and  monopolise 
the  whole  Manchurian  trade  to  themselves.  They 
have  those  transportation  facilities  and  preferential 
treatments,  which  are  accorded  them  by  their  pa- 


48    THE  CHINO-JAPANESE  TREATIES 

ternal  government  but  which  are  denied  to  the 
western  merchants;  they  can  "engage  in  business 
and  manufacture  of  any  kind  whatsoever"  right  in 
Manchuria  and  produce  the  necessary  supplies  on 
the  spot  with  cheap  labour  and  without  meeting  the 
cost  of  shipment,  while  the  western  merchants  will 
have  to  order  their  goods  from  home,  to  be  shipped 
over  at  great  cost,  and  only  to  be  undersold;  they 
shall  be  free  to  travel  and  to  reside  in  South  Man- 
churia and  thus  to  carry  on  local  trade  without  the 
slightest  restriction,  while  the  western  merchants, 
who  are  not  granted  these  privileges  and  therefore 
not  so  free  in  local  business  dealings,  will  have 
either  to  give  up  their  trade  entirely  or  to  see  their 
business  ruined.  Such  a  condition  is  not  only  pos- 
sible, but  it  is  sure  to  come,  if  the  treaties  of  1915 
were  permitted  to  stand.  Those  who  have  taken 
but  an  academic  interest  in  the  principle  of  equal 
opportunity  in  China  may  find  it  hard  to  see  such 
a  condition  in  their  mind's  eye,  but  the  western  mer- 
chants who  have  had  sad  and  bitter  experiences  in 
the  past  in  their  Manchurian  trade  will  readily 
agree  that  such  a  condition  will  arise  as  surely  as 
the  day  follows  the  night. 

To  press  the  question  just  one  step  further.  We 
can  take  the  cotton  industry  as  our  illustration.  Ac- 
cording to  the  Chino- Japanese  treaties  of  1915, 
Japanese  subjects  have  the  right  to  erect  cotton  mills 
in  South  Manchuria,  for  instance.  They  can  use 
the  native  raw  material,  employ  the  native  labour,  to 


OF  MAY  25,  1915  49 

manufacture  the  kind  of  cotton  goods  most  suitable 
to  meet  the  needs  of  the  natives.  In  such  a  case, 
does  any  one  imagine  that  American  cotton  which 
has  found  a  very  large  market  in  Manchuria  in  the 
past  will  be  able  to  compete  with  the  Japanese  made  ? 
In  such  a  case,  the  opportunity  for  trade  and  com- 
merce will  become  absolutely  unequal. 

But  this  is  not  all.  In  addition,  Japanese  subjects 
shall,  as  soon  as  possible,  prospect  and  work  mines 
in  the  mining  areas  in  South  Manchuria.  The  speci- 
fied number  as  given  in  the  exchanged  notes  consists 
of  six  coal  mines,  two  iron  mines,  and  one  gold 
mine,  mostly  in  Fengtien  and  Kirin  provinces. 
There  is  nothing  in  the  treaties  or  in  the  exchanged 
notes  to  indicate  that  these  rich  mines  will  not  be- 
come a  Japanese  monopoly,  although  there  is  no 
statement  that  other  interested  Powers  are  to  be 
excluded.  This  is  to  be  presumed,  however.  Un- 
fortunately, it  is  a  usual  practice  with  Japan  to 
monopolise  everything  she  can  lay  her  hand  on  in 
China.  While  it  is  unnecessary  for  us  to  deal  at 
any  length  with  Japan's  financial  and  economic  am- 
bitions in  China,  the  methods  with  which  she  tries 
to  achieve  her  aims,  and  the  natural  consequences  of 
her  designs,  it  may  be  of  interest  to  tell  the  tale 
again  by  briefly  referring  to  the  case  of  Hanheyping 
Iron  Works.  In  the  1915  treaties  the  Chinese  Gov- 
ernment was  made  to  agree  "not  to  confiscate  the 
said  Company,  nor  without  the  consent  of  the 
Japanese  capitalists  to  convert  it  into  a  state  enter- 


50    THE  CHINO-JAPANESE  TREATIES 

prise,  nor  cause  it  to  borrow  and  use  foreign  capital 
other  than  Japanese."  From  the  point  of  view  of 
the  Japanese,  there  might  be  sufficient  reasons  why 
the  Company  must  not  use  any  "foreign  capital 
other  than  Japanese,"  but  no  amount  of  argument 
can  aher  the  fact  that  the  principle  of  equal  oppor- 
tunity which  the  Japanese  Government  has  so  re- 
peatedly professed  to  respect  in  international  agree- 
ment or  in  official  notes  has  been  deliberately  set  at 
naught. 

Fortunately,  however,  the  United  States  is  not 
bound  by  those  limitations  on  the  Open  Door  princi- 
ple in  China.  President  Wilson  in  a  note  issued  on 
August  6,  1919,  in  supplement  to  the  "frank  state- 
ment" given  out  by  Viscount  Uchida  at  Tokyo  about 
the  restoration  of  Kiao-chow  to  China,  had  made  it 
clear  that  the  United  States  was  in  no  way  bound 
to  recognise  the  Chino- Japanese  treaties  of  1915. 
"No  reference  was  made,"  said  President  Wilson, 
"to  this  policy  (of  restoration)  being  in  any  way 
dependent  upon  the  execution  of  the  agreement  of 
1915  to  which  Viscount  Uchida  appears  to  have 
referred.  Indeed,  I  felt  it  my  duty  to  say  that 
nothing  that  I  agreed  to  must  be  construed  as  an 
aquiescence  on  the  part  of  the  government  of  the 
United  States  in  policy  of  the  notes  exchanged  be- 
tween China  and  Japan  in  1915  and  1918."  This 
position  of  the  United  States  is  as  clear  and  as  well 
defined  as  it  can  be. 

This  happened,  however,  after  the  treaty  of  peace 


OF  MAY  25,  1915  51 

with  Germany  was  signed  and  the  German  rights  in 
Shantung  were  awarded  to  Japan.  Early  in  March, 
1919,  when  the  Shantung  question  was  brought  be- 
fore the  Peace  Conference  at  Versailles  for  discus- 
sion and  deliberation,  there  was  a  rumour  emanat- 
ing from  the  Japanese  authorities  in  Washington 
and  widely  circulated  in  the  American  press  to  the 
effect  that  the  Japanese  peace  delegation  would 
quote  to  the  Peace  Conference  the  Lan^ngjshii 
agreement  of  November  17,  1917,  to  repudiate  the 
right  of  the  United  States  in  interfering  with 
Japan's  policy  in  China.  It  was  reported  that  "in 
Japanese  diplomatic  quarters  it  is  claimed  that  the 
failure  of  the  United  States  to  raise  any  objection 
after  the  publication  of  the  treaties  and  agreements 
of  May  25,  1915,  by  the  Japanese  Government  to 
those  pacts,  and  the  subsequent  signing  by  the 
United  States,  two  years  later,  of  the  Lansing-Ishii 
agreement,  prevents  the  United  States  at  this  time 
from  raising  objections  to  the  arrangements  Japan 
has  concluded  with  China."  As  a  matter  of  fact, 
the  United  States  was  definitely  on  record  as  resent- 
ing any  agreements  resulting  from  the  Twenty-one 
Demands  between  the  Chinese  and  Japanese  Gov- 
ernments, which  would  impair  the  political  inde- 
pendence, territorial  integrity,  treaty  obligations, 
and  the  free  economic  development  of  China.  We 
can  easily  recall  that,  on  May  7,  1915,  when  the 
diplomatic  negotiations  in  regard  to  the  Twenty-one 
Demands   reached   a   breaking   point,    the   United 


52    THE  CHINO-JAPANESE  TREATIES 

States,  in  a  statement  to  the  public,  declared  that 
she  would  not  surrender  any  of  her  treaty  rights  in 
China.    The  statement  reads : 


"At  the  beginning  of  negotiations  the  Japanese 
Government  confidentially  informed  this  Government 
of  the  matters  which  were  under  discussion,  and  ac- 
companied the  information  by  the  assurance  that 
Japan  had  no  intention  of  interfering  with  either  the 
political  independence  or  territorial  integrity  of  China, 
and  that  nothing  that  she  proposed  would  discriminate 
against  other  Powers  having  treaties  with  China  or 
interfere  with  the  Open  Door  policy  to  which  all  the 
leading  nations  are  committed. 

"This  Government  has  not  only  had  no  thought  of 
surrendering  any  of  its  treaty  rights  with  China,  but 
it  has  never  been  asked  by  either  Japan  or  China  to 
make  any  surrender  of  these  rights." 

Under  all  circumstances,  this  declaration  would 
alone  be  quite  sufficient  to  make  clear  the  position 
of  the  United  States  toward  the  Twenty-one  De- 
mands. But  events  in  the  Far  East  moved  with 
vertiginous  speed.  On  the  day  the  American  dec- 
laration was  published,  an  ultimatum  was  presented 
by  Japan  to  the  Chinese  Government,  giving  hardly 
more  than  48  hours  to  make  a  "satis factor}'-  an- 
swer." The  Chinese  Government  answered,  and  the 
result  was  that  those  notorious  Twenty-one  De- 
mands were  more  or  less  classified  and  clarified,  and 
put  into  the  treaties  and  notes  which  were  signed  on 


OF  MAY  25,  1915  53 

May  25,  1919.  Before  the  treaties  were  signed, 
however,  the  United  States  made  known  her  posi- 
tion once  again  in  another  note  which  was  sent  both 
to  the  Chinese  and  Japanese  Governments.  The 
note  reads : 

"In  view  of  the  circumstances  of  the  negotiations 
which  have  taken  place  or  which  are  now  pending  be- 
tween the  Government  of  China  and  the  Government  of 
Japan  and  the  agreements  which  have  been  reached  as 
a  result  thereof,  the  Government  of  the  United  States 
has  the  honour  to  notify  the  Government  of  the  Chi- 
nese Republic  (and  of  Japan)  that  it  cannot  recog- 
nise any  agreement  or  undertaking  which  has  been 
entered  into,  or  which  may  be  entered  into  between 
the  Governments  of  China  and  Japan  impairing  the 
treaty  rights  of  the  United  States  and  its  citizens  in 
China,  the  political  or  territorial  integrity  of  the  Re- 
public of  China,  or  the  international  policy,  commonly 
known  as  the  Open  Door  policy." 

With  these  two  diplomatic  documents  on  record, 
the  United  States  was  in  an  inequivocal  position  as 
to  the  Japanese  policy  in  China  and  the  Chino- 
Japanese  treaties  of  1915,  directly  resulted  from  the 
Twenty-one  Demands.  The  United  States  can 
either  hold  Japan  to  "strict  accountability"  on  the 
general  principle  of  the  Open  Door  about  which  a 
number  of  agreements  have  been  entered  between 
the  two  countries,  or  refuse  to  recognise  the  1915 
treaties  on  the  strength  of  these  notes  above  quoted. 


54    THE  CHINO-JAPANESE  TREATIES 

It  is  highly  doubtful  if  Great  Britain,  France, 
Russia,  and  Italy  who  had  secret  agreements  with 
Japan  to  support  her  claims  in  Shantung,  could  in 
their  own  interest  or  in  the  interest  of  China  sup- 
port Japan  to  enforce  these  treaties.  Indeed,  as  said 
before,  in  yielding  to  Japan's  wish  at  the  Peace  Con- 
ference, Lloyd  George  had  considered  them  as  exe- 
cuted. And  the  United  States  could  certanly  not  be 
bound  by  the  Lansing-Ishii  agreement  which  has 
but  recognised  Japan's  "special  interest"  in  China. 
When  the  Lansing-Ishii  agreement  was  made,  it  was 
admitted  by  Mr.  Lansing  himself  before  the  Senate 
Foreign  Relations  Committee,  the  Twenty-one  De- 
mands or  the  treaties  resulting  from  them  did  not 
enter  into  the  discussion  of  the  Agreement.  "At  no 
time  was  it  understood  that  the  Lansing-Ishii  agree- 
ment was  the  endorsement  of  the  Twenty-one  De- 
mands?" asked  Senator  Borah.  "Absolutely  not," 
replied  Mr.  Lansing,  "and  we  were  opposed  to 
them."  This  catechism  ought  to  make  the  position 
of  the  United  States  clear  beyond  doubt. 


DOCTRINE  OF  REBUS  SIC  STANTIBUS 

SO  far,  we  have  based  our  arguments  on  the 
ground  that  the  treaties  of  1915  are  in  con- 
flict with  the  Open  Door  principle,  with  the 
existing  treaties,  and  with  the  fundamental  laws  of 
the  Republic  of  China.  As  such,  they  are,  there- 
fore, null  and  void  ab  initio.  There  can  be  no 
stronger  reason  for  considering  the  treaties  as  null 
and  void  than  the  unalterable  fact  that  they  have 
never  been  concurred  in  by  the  legislative  body  of 
the  Chinese  Republic  as  it  is  required  by  the  Con- 
stitution ;  and  there  can  be  no  more  solid  ground  for 
regarding  the  treaties  as  invalid  from  the  very  be- 
ginning than  the  obvious  fact  that  they  are  in  con- 
flict with  a  number  of  existing  international  agree- 
ments, of  which  Japan,  or  China,  or  both  are  the 
contracting  parties.  In  the  point  of  law,  therefore, 
these  treaties  of  1915,  the  abrogation  of  which 
China  has  urged,  are  null  and  void  from  the  very 
beginning.  It  is  not  at  all  necessary  for  China  to 
urge  their  abrogation;  China  can  repudiate  them 
entirely,  without  violating  her  international  good 
faith. 

This  is  the  course,  which  China  probably  will  not 
take,  except  as  a  last  resort,  when  she  has  failed  in 

55 


56    THE  CHINO-JAPANESE  TREATIES 

all  her  attempts  to  bring  about  a  mutual  agreement 
for  the  abrogation  of  these  treaties  of  1915.  At  the 
Peace  Conference  at  Versailles,  China  brought  out 
her  claim  for  the  abrogation  of  the  1915  treaties. 
She  was  immediately  accused  of  bad  faith,  and  of 
regarding  international  agreements  as  mere  scraps 
of  paper.  China  was  not,  however,  guilty  of  the 
charge.  The  very  fact  that  she  had  urged  their 
abrogation  at  the  Peace  Conference,  instead  of  dis- 
regarding them  altogether  as  she  is  entitled  to  do  so, 
was  an  indication  that  she  was  not  wilUng  to  play 
fast  and  loose  with  her  international  agreements, 
although  these  agreements  have  never  been  approved 
by  her  legislature. 

Lest  the  argument  might  appear  extravagant,  that 
the  Chino-Japanese  treaties  of  1915  are  null  and  void 
ah  initio,  we  may  go  one  step  further  by  assuming, 
for  the  sake  of  argument,  that  they  are  not  in  con- 
flict with  the  existing  treaties,  with  the  Open  Door 
policy,  or  with  the  Constitution  of  the  Chinese  Re- 
public. Even  on  this  assumption,  the  voidance  of 
the  1915  treaties  ought  to  be  taken  as  a  matter  of 
fact,  since  the  circumstances  under  which  they  were 
entered  into  have  entirely  changed.  In  other  words, 
the  very  circumstances,  for  which  the  treaties  were 
concluded,  and  which  were  supposed  to  continue, 
have  ceased  to  exist. 

Now  it  is  a  recognised  and  well-established  prin- 
ciple of  international  law  that  a  treaty  becomes  null 
and  void,  when  the  conditions  under  which  it  is 


OF  MAY  25,  1915  57 

concluded,  or  the  conditions  contemplated  by  the 
provisions  of  the  treaty  cease  to  exist.    This  prin- 
ciple is  generally  known  as  the  doctrine  of  rebiis  sic 
stantibus.     Mr.   William  E.   Hall,  the  very  well- 
known    English    authority    on    international    law, 
whose  opinion  has  been  highly  valued  by  interna- 
tional jurists,  points  out  that  a  treaty  becomes  null 
and  void  ''when  an  express  condition  upon  which  • 
the  continuance  of  the  obligation  of  the  treaty  is| 
made  to  depend  ceases  to  exist."     Bluntschli,  one  ' 
of  the  earlier  authorities  of  modem  international 
law,  holds  the  same  opinion  on  such  matters  when 
he  says : 

"Lorsque  Tordre  de  faits  qui  avaient  ete  la  base 
expresse  ou  tacite  du  traite  se  modifie  tellement  avec 
I'e  temps,  que  le  sens  du  traite  s'est  perdu,  ou  que  son 
execution  est  devenue  contraire  a  la  nature  des  choses, 
robligation  de  respecter  le  traite  doit  cesser."  And 
Professor  Oppenheim,  the  well-known  Swiss-British 
authority,  frankly  admits  that  the  doctrine  of  rebus 
sic  stantibus  is  as  necessary  for  international  law  as 
the  very  rule  pacta  sunt  servanda.  "For  it  is  an  al- 
most universally  recognised  fact  that  vital  changes  of 
circumstances  may  be  of  such  a  kind  as  to  justify  a 
party  in  notifying  an  unnotifiable  treaty.  The  vast 
majority  of  publicists,  as  well  as  all  the  Governments 
of  the  members  of  the  Family  of  Nations,  defend 
the  principle  conventio  omnis  intelligitur  rebus  sic 
stantibus,  and  they  agree,  therefore,  that  all  treaties 
are  concluded  under  the  tacit  condition  rebus  sic 
stantibus." 


58    THE  CHINO-JAPANESE  TREATIES 

We  can  go  on  almost  indefinitely,  quoting  au- 
thorities after  authorities,  to  show  how  a  treaty  be- 
comes null  and  void  owing  to  a  vital  change  of  cir- 
cumstances that  has  taken  place.  In  the  case  under 
consideration,  it  only  remains  for  us  to  show  that 
such  a  vital  change  of  circumstances  has  taken 
place  since  the  conclusion  of  the  Chino- Japanese 
treaties  of  1915,  and  that  that  change  is  sufficient 
to  invalidate  the  treaties  in  question. 

The  negotiations  on  the  Twenty-one  Demands 
were  brought  to  an  abrupt  end  on  May  7,  1915, 
when  the  Japanese  Government  presented  an  ulti- 
matum to  the  Chinese  Government,  demanding  the 
latter  to  accede  to  the  most  of  the  onerous  demands 
within  a  little  over  forty-eight  hours.  On  May  9, 
the  Chinese  Government,  "with  a  view  to  preserv- 
ing the  peace  of  the  Far  East,"  accepted  the  ulti- 
matum, acceding  to  the  first  four  groups  of  de- 
mands, leaving  those  in  the  fifth  group  "for  later 
negotiation."  "The  Japanese  Minister  is  hereby 
requested  to  appoint  a  day  to  call  at  the  Ministry 
of  Foreign  Affairs  to  make  the  literary  improvement 
of  the  text  and  sign  the  agreement  as  soon  as  possi- 
ble." The  demands  thus  acceded  to  by  the  Chinese 
Government  were  embodied  in  the  treaties  and  notes 
now  under  consideration,  which  were  completed  and 
signed,  one  and  all,  on  May  25,  1915.  At  that  time, 
China  was  a  neutral  country  in  the  European  strug- 
gle. In  other  words,  as  a  neutral,  China  was  then 
on  friendly  terms  with  Japan  as  well  as  with  Ger- 


OF  MAY  25,  1915  59 

many.  As  she  had  abandoned  her  intention  to  take 
an  active  part  in  the  war  (her  request  for  participa- 
tion in  the  Tsingtao  expedition  in  August,  1914,  was 
declined  by  the  British  and  Japanese  Governments), 
China  presumed  that  she  would  remain  neutral 
throughout  the  w^ar.  And  with  this  presumption 
China  was  cajoled  into  the  belief  that,  as  a  neutral, 
she  could  have  no  place  in  the  post-bellum  peace 
conference,  and  that  necessar)^  arrangements  in  re- 
gard to  the  German  possessions  in  Shantung  must 
be  made  with  Germany  directly  by  Japan  who  was 
willing — nay,  anxious — to  speak  for  China.  It  be- 
comes apparent  that  China,  and  Japan  as  well,  en- 
tered into  these  treaties  of  1915  on  this  express  or 
implicit  imderstanding  that  China  was  to  remain 
neutral  during  the  war,  that  as  a  neutral  Power  she 
would  not  be  invited  to  the  post-war  conference,  and 
that  as  she  could  not  speak  for  herself  or  deal  with 
Germany  directly,  it  was  necessary  for  her  to  agree, 
as  she  had  agreed  after  the  Russo-Japanese  War  of 
1904-5,  to  whatever  arrangement  that  Japan  might 
make  with  Germany  in  regard  to  Shantung  after 
the  war.  This  understanding  or  this  presumption 
that  China  was  to  remain  neutral  during  the  war  was 
therefore  an  implicit  condition,  under  which  the 
treaties  of  1915  were  entered  into,  and  upon  which 
the  continuance  of  the  obligation  of  these  treaties 
will  necessarily  depend.  It  would  be  ridiculous  to 
think  otherwise;  for  had  China  foreseen  that  in  a 
war  between  civilisation  and  barbarism  she  could 


60    THE  CHINO- JAPANESE  TREATIES 

not  remain  neutral,  and  that  she  was  eventually  to 
be  drawn  into  the  conflict,  and  therefore  she  would 
be  entitled  to  a  seat  in  the  peace  conference,  she 
would  not  have  consented  to  such  arrangements  as 
provided  for  in  the  treaties  and  notes  of  1915, 
knowing  full  well  that,  as  she  was  to  have  an  oppor- 
tunity to  deal  with  Germany  directly  at  the  Peace 
Conference,  she  would  be  under  no  necessity  of  com- 
ing to  any  advanced  arrangement  with  Japan.  It 
cannot  be  doubted,  therefore,  that  China's  remain- 
ing neutral  throughout  the  war  was  the  absolute 
condition  under  which  the  treaties  of  1915  were 
concluded,  and  upon  which  they  depended  for  their 
validity. 

This  absolute  condition  ceased  to  exist  with 
China's  participation  in  the  war  two  years  later. 
On  February  9,  1917,  China  protested  against  the 
ruthless  submarine  warfare  adopted  by  the  German 
Government  towards  the  end  of  the  month  of  Jan- 
uary, saying  that  she  would  be  constrained  to  sever 
diplomatic  relations  with  Germany,  if  her  protest 
should  prove  to  be  ineffectual.  As  Germany  declined 
to  abandon  her  blockade  policy,  China  had  no  choice 
but  to  carry  out  her  warning.  A  Presidential  man- 
date was  issued  on  March  14,  in  which  diplomatic 
relations  with  Germany  were  declared  to  be  severed. 
In  a  communication  to  the  German  Minister  in 
Peking  under  the  same  date,  the  Chinese  Minister 
of  Foreign  Affairs  said:  "The  Government  of  the 
Chinese  Republic,  to  its  deep  regret,  considers  its 


OF  MAY  25,  1915  61 

protest  to  be  ineffectual.  The  Government  of  the 
RepubHc  is  constrained  to  sever  the  diplomatic  rela- 
tions at  present  existing  with  the  Imperial  German 
Government/'  On  August  14,  another  Presidential 
mandate  was  issued,  declaring  the  existence  of  the 
state  of  war,  ''between  China  on  the  one  hand  and 
Germany  and  Austria-Hungary  on  the  other,  com- 
mencing from  ten  o'clock  of  this,  the  14th  day  of 
the  8th  month  (August  14)  of  the  6th  year  of  the 
Republic  of  China." 

This  declaration  of  war  by  China  was  admittedly 
a  vital  change  of  circumstances,  which  would,  in 
the  eyes  of  the  law,  be  sufficient  ground  for  the  nulli- 
fication of  the  1915  treaties.  From  the  position  of 
a  neutral  country,  China  now  joined  the  rank  of  the 
belligerents  in  the  war, — a  fact  contrary  to  the  as- 
sumed condition,  for  the  continuance  of  which  the 
Chinese  Government  had  consented  to  the  arrange- 
ments about  the  disposition  of  German  rights  in 
Shantung  as  embodied  in  the  1915  treaties.  The 
fundamental  presumption  that  she  was  to  remain  a 
neutral  all  the  time  during  the  conflict  became  thus 
a  bygone  condition.  China  was,  by  her  participa- 
tion in  the  war,  assured  of  a  place  at  the  post-bellum 
peace  conference  where  she  could  deal  with  Germany 
directly,  as  one  belligerent  with  another,  in  regard 
to  the  German  rights  and  interests  in  the  Shantung 
province.  Under  such  changed  circumstances,  the 
consent  which  China  was  forced  to  give  in  the  trea- 
ties of  1915  to  whatever  arrangement  Japan  might 


62    THE  CHINO-JAPANESE  TREATIES 

make  with  Germany  in  regard  to  Shantung  became 
meaningless  and  valueless.  It  would  be  the  height  of 
folly  to  think  that  China  was  bound  by  this  consent, 
when  she,  as  it  has  been  shown,  could  look  after 
her  own  interests  and  rights  without  troubling  a 
third  party  to  do  so.  To  all  intents  and  purposes, 
the  agreement  reached  regarding  the  disposition  of 
Shantung  became  null  and  void  upon  China's  par- 
ticipation in  the  war.  In  such  a  case,  as  in  similar 
cases,  the  doctrine  of  rebtis  sic  stantibics  should 
rule. 

Without  appearing  arbitrary  in  the  matter,  how- 
ever, we  can  point  to  the  specific  rules  of  Interna- 
tional Law,  which  guide  the  civilised  nations  in  con- 
troversies of  this  sort.  "The  principle  which  has 
been  mentioned  as  being  a  sufficient  test  of  the  ex- 
istence of  obligatory  force  or  of  the  voidability  of 
a  treaty  at  a  given  moment  may  be  stated  as  fol- 
lows," says  Hall,  whom  we  have  quoted  before. 
"Neither  party  to  a  contract  can  make  its  binding 
effect  dependent  at  his  will  upon  conditions  other 
than  those  contemplated  at  the  moment  when  the 
contract  was  entered  into,  and  on  the  other  hand 
a  contract  ceases  to  be  binding  so  soon  as  anything 
which  formed  an  implied  condition  of  its  obligatory 
force  at  the  time  of  its  conclusion  is  essentially 
altered.  If  this  be  true,  and  it  will  scarcely  be  con- 
tradicted, it  is  only  necessary  to  determine  under 
what  implied  conditions  an  international  agreement 
is  made.     When  these  are  found  the  reasons  for 


OF  MAY  25,  1915  63 

which  a  treaty  may  be  denounced  or  disregarded 
will  also  be  found."  In  our  case,  the  implied  con- 
ditions of  the  Chino-Japanese  treaties  of  1915  were 
that  China  was  to  remain  neutral  throughout  the 
duration  of  the  war,  that  as  a  neutral  country  China 
was  not  likely  to  be  represented  at  the  peace  con- 
ference, and  that  Japan  would  therefore  speak  for 
China  in  regard  to  the  arrangements  of  the  disposi- 
tion of  the  German  concessions  and  rights  in  Shan- 
ttmg.  Now,  with  China's  participation  in  the  war, 
the  implied  conditions  of  these  treaties  were  radically 
changed.  Could  China  be  bound  to  such  an  agree- 
ment made  under  circumstances  totally  different 
from  those  contemplated  ? 

This  is  not  a  mere  empty  contention.  It  is  borne 
out  by  facts.  We  need  only  ask  the  Japanese  diplo- 
mats who  conducted  the  negotiations  of  the  Twenty- 
one  Demands  in  Peking  in  1915,  if  it  was  true  that 
the  Chinese  Foreign  Minister,  Mr.  Lou  Tseng- 
hsiang,  repeatedly  urged  that  Kiao-chow  should  be 
returned  to  China  after  the  war,  and  that  China 
should  be  invited  to  participate  in  the  conference 
between  Japan  and  Germany  in  regard  to  that  mat- 
ter. At  the  outset  of  the  negotiation  of  the  Twenty- 
one  Demands  in  February,  1915,  the  Chinese  Gov- 
ernment pointed  out^that  the  question  of  the  disposal 
of  the  German  concessions  in  Shantung  related  to 
the  post-bellum  settlement,  and  as  such,  it  should 
therefore  be  left  over  for  consideration  by  all  the 
parties  interested  at  the  peace  conference.     It  was 


64    THE  CHINO-JAPANESE  TREATIES 

also  pointed  out  that  as  a  neutral  country  then,  and 
being  still  on  friendly  terms  with  Germany,  China 
would  not  agree  to  the  Japanese  demands  of  the  first 
group.  Failing  to  persuade  the  Japanese  Minister 
to  accept  this  point  of  view,  the  Chinese  Government 
took,  then,  the  position  that  it  would  agree  to  the 
Japanese  demand  in  principle  if  China  was  to  be 
invited  to  participate  in  the  negotiations  between 
Japan  and  Germany  in  regard  to  the  disposition  of 
the  Shantung  concessions.  In  view  of  the  fact  that 
Shantung,  a  Chinese  province,  was  to  be  the  subject 
of  future  negotiation  between  Japan  and  Germany, 
it  was  perfectly  natural  that  China,  the  Power  most 
vitally  concerned  in  the  future  of  that  territory, 
should  have  desired  representation  in  the  negotia- 
tion. The  Japanese  Minister  was,  however,  not  only 
insistent,  but  also  persistent.  He  refused  to  take  a 
single  backward  step.  And  he  won  the  diplomatic 
game,  when  the  Chinese  Government,  thinking  that, 
as  a  neutral  government,  it  could  not  participate  in 
the  forthcoming  peace  negotiations,  yielded  to  the 
Japanese  demand.  A  desperate  effort  was  made  to 
correct  this  mistake  a  little  later,  but  nothing  short 
of  actual  participation  in  the  conflict  could  save 
China  from  this  false  step.  It  was  generally  under- 
stood, and  frankly  conceded  among  the  official  and 
diplomatic  circles  in  Peking,  that  in  entering  the 
war,  China  not  only  gained  a  place  at  the  peace  con- 
ference, but  would  also,  by  thus  gaining  a  place, 
bring  about  a  vital  change  of  political  and  diplo- 


OF  MAY  25,  1915  65 

matic  situation  in  the  Far  East  that  would  in  the 
point  of  law  invalidate  the  Chino- Japanese  treaties 
of  1915.  If  there  is  ever  a  case  in  which  the  doc- 
trine of  rebus  sic  stantibus  holds  good,  it  is  this  case 
of  China's  participation  in  the  war. 


VI 

ABRCXiATION  OF  THE  LEASE  OF 
KIAO-CHOW 

ASIDE  from  the  doctrine  of  rebus  sic  stantibus, 
which  alone  is,  as  a  matter  of  law,  quite  suf- 
ficient to  render  the  Chino- Japanese  treaties 
of  1915  void,  we  are  fortunate  and  proud  to  state 
that  there  is  yet  another  principle  of  International 
Law,  equally  well  recognised,  upon  the  strength  of 
which  China  may  yet  hope  for  redress.  It  is  none 
other  than  that  a  treaty  becomes  null  and  void  when 
its  object  ceases  to  exist. 

This  principle  is  held  by  all  the  noted  interna- 
tional jurists  and  publicists  almost  without  a  single 
exception.  To  cite  but  one,  we  may  again  refer  to 
Professor  Oppenheim  whom  we  have  quoted  before : 
"All  treaties  whose  obligations  concern  a  certain 
object  become  void  through  the  extinction  of  such 
object.  Treaties,  for  example,  concluded  in  r^^rd 
to  a  certain  island,  become  void  when  such  island 
disappears  through  the  operation  of  nature,  as  like- 
wise do  treaties  concerning  a  third  State  when  such 
State  merges  in  another."  It  is  perfectly  clear  that, 
in  such  circumstances,  treaties  will  ipso  facto  be- 
come void  when  their  objects  cease  to  exist 

The  same  principle  is  also  applicable  to  the  Kiao- 


THE  CHINO-JAPANESE  TREATIES       67 

chow  lease  in  connection  with  the  treaties  of  1915. 
By  common  consent  among  the  civilised  nations, 
war  abrogates  all  treaties,  except  those  which  have 
settled  permanent  questions,  and  those  which  are 
entered  into  specifically  to  meet  the  conditions  aris- 
ing out  of  war.  The  treaty  concluded  between 
China  and  Germany  on  March  6,  1898,  whereby  the 
territory  of  Kiao-chow  Bay  was  leased  to  Germany 
for  ninety-nine  years,  is  a  treaty  which  was  neither 
meant  to  settle  permanent  questions  between  the  two 
countries,  nor  intended  to  meet  the  conditions  of 
war.  On  the  very  contrary,  the  treaty  is  temporary 
in  nature,  inasmuch  as  the  lease  which  it  provided  / 
for  was  limited  to  ninety-nine  years.  Such  a  treaty , 
is,  therefore,  subject  to  abrogation  upon  the  out- 
break of  war  between  the  contracting  parties.  There 
is  no  denying  that,  upon  China's  entrance  into  the 
conflict,  the  said  treaty  was  abrogated.  In  fact,  the 
Chinese  Government  had  so  stated  in  the  declaration 
of  war  upon  Germany  and  in  its  communication  to 
the  Allied  Powers.  The  Presidential  mandate  of 
August  14,  1915,  declaring  the  existence  of  a  state 
of  war  from  then  on,  says :  "In  consequence  thereof, 
all  treaties,  agreements,  and  conventions,  heretofore 
concluded  between  China  and  Germany,  and  between 
China  and  Austria-Hungary,*  as  well  as  such  parts 

♦China  declared  war  on  Austria-Hungary  in  the  tame 
Presidential  mandate,  on  the  ground  that  "it  is  not  Germany 
alone,  but  Austria-Hungary  as  well,  which  has  adopted  and 
pursued  this  policy  (of  submarine  warfare)  without  abate- 
ment.*' 


68    THE  CHINO-JAPANESE  TREATIES 

of  the  international  protocols  and  international 
agreements  as  concern  only  the  relations  between 
China  and  Germany  and  between  China  and  Aus- 
tria-Hungary are,  in  conformity  with  the  Law  of 
Nations  and  international  practice,  hereby  abro- 
gated/* The  abrogation  of  these  treaties,  agree- 
ments, and  conventions  with  Germany  and  Austria- 
Hungary  was  communicated  by  the  Chinese  Min- 
ister of  Foreign  Affairs  to  the  diplomatic  represen- 
tatives of  the  Allied  and  neutral  nations  and  the 
American  Minister  in  Peking,  in  a  circular  note  of 
August  14.  Sir  Beilby  Alston,  then  the  British 
Charge  d' Affaires  at  Peking,  admitted  this  fact  in 
his  note  to  the  Chinese  Foreign  Minister  of  the  same 
date.  Of  the  other  Allied  and  neutral  nations, 
Japan  included,  not  a  single  Power  raised  any  ob- 
jection to  this  point.  The  principle  is  perhaps  too 
well  recognised  to  be  of  dispute. 

That  the  German  lease  of  Kiao-chow  was  abro- 
gated by  China's  participation  in  the  war  is  the  posi- 
tion which  the  Chinese  Government  has  most  con- 
sistently maintained.  Her  delegates  at  the  Peace 
. '  Conference  at  Versailles  made  this  point  as  one  of 
^  :  the  reasons  for  direct  restoration  of  the  German 
leased  territory  to  China.  Owing  to  the  engage- 
ments which  Great  Britain,  France,  and  Italy  had 
previously  made  with  Japan  about  the  disposal  of 
German  rights  and  concessions  in  Shantimg,  China's 
claim  at  the  Peace  Conference  was  not  granted. 
Japan  has  since  attempted  on  different  occasions  to 


OF  MAY  25,  1915  69 

persuade  China  to  negotiate  for  the  restoration  of 
the  Kiao-chow  leased  territory.  It  is  significant  to 
note  that,  in  answer  to  the  overtures  from  Japan, 
China  has  consistently  maintained  that  her  declara- 
tion of  war  upon  Germany  abrogated  the  lease  of 
Kiao-chow,  and  that,  upon  the  abrogation  of  the  . 
lease,  the  territory  reverted  back  to  China,  ipso 
facto,  so  to  speak.  There  is,  therefore,  from  the 
point  of  view  of  the  Chinese  Government,  no  neces- 
^ty  for  negotiation. 

j  On  the  other  hand,  the  Japanese  Government  has 
refused  to  admit  that  China's  declaration  of  war 
,  ."^jUpon  Germany  abrogated  the  lease,  and  that  the 
territory  held  under  the  lease  could  revert  back  to 
China.  The  point  was  emphasised  by  the  Japanese 
delegates  at  the  Versailles  Peace  Conference,  and 
has  since  been  repeatedly  asserted,  that  the  lease 
could  not  be  abrogated  by  China's  participation  in 
the  war,  inasmuch  as  the  Kiao-chow  leased  territory  I 
was  at  the  time  not  in  the  hands  of  Germany,  but 
in  the  hands  of  Japan. 

In  answer  to  this  argument,  we  can  refer,  for  a 
parallel  case,  to  Article  132  of  the  Treaty  of  Peace 
with  Germany  signed  at  Versailles.  Therein  Ger- 
many was  made  to  agree  "to  the  abrogation  of  the 
leases  from  the  Chinese  Government  under  which 
the  German  concessions  at  Tien-tsin  and  Hankow 
are  now  held."  It  is  imnecessary  to  say  that  the 
lease  of  Kiao-chow  Bay  is  of  the  similar  kind.  If 
the  leases  of  the  German  concessions  at  Tien-tsin 


f 


70    THE  CHINO-JAPANESE  TREATIES 

and  Hankow  were  admitted  as  abrogated,  for  what 
reason  and  by  what  rule  of  International  Law  was 
the  lease  of  Kiao-chow  Bay  regarded  as  not  abro- 
gated? It  is  almost  a  unanimous  opinion  that,  as 
the  lease  convention  did  not  settle  anything  perma- 
nently, as  it  was  not  intended  to  meet  conditions  in 
case  of  war,  but  on  the  contrary,  it  was  merely  a 
temporary  lease  limited  to  ninety-nine  years,  it  was 
most  undoubtedly  abrogated  by  China's  declaration 
of  war  upon  Germany. 

Mr.  Robert  Lansing,  former  Secretary  of  State 
of  the  United  States  and  one  of  the  American  Com- 
missioners to  negotiate  peace  at  Paris,  held  that  the 
extinguishment  of  the  lease  upon  China's  declara- 
tion of  war  was  at  once  a  moral  and  legal  ground 
for  the  Chinese  Government  to  take.  In  his  book, 
"The  Peace  Negotiations,  A  Personal  Narrative," 
Mr.  Lansing  says : 

**As  to  whether  a  state  of  war  does  in  fact  abro- 
gate a  treaty  of  the  character  of  the  Sino-German 
Treaty  of  1898  some  question  may  be  raised  under 
the  accepted  rules  of  International  Law,  on  the  ground 
that  it  was  a  cession  *  of  sovereign  rights  and  con- 
stituted an  international  servitude  *  in  favour  of  Ger- 
many over  the  territory  affected  by  it.     But  in  this 

*  It  is  questionable  whether  it  could  be  properly  regarded 
as  "a  cession  of  sovereign  rights"  and  "an  international 
servitude."  Both  terms,  "cession"  and  "international  servi- 
tude," carry  the  usual  implication  of  being  perpetual  and 
almost  irrevocable,  while  as  a  matter  of  fact  the  lease,  by  its 
own  terms,  was  limited  to  ninety-nine  years,  with  China's 
sovereignty  over  the  territory  specifically  reserved. 


OF  MAY  25,  1915  71 

particular  case  the  indefensible  duress  employed  by 
the  German  Government  to  compel  China  to  enter 
into  the  treaty  introduces  another  factor  into  the  prob- 
lem and  excepts  it  from  any  general  rule  that  treaties 
of  that  nature  are  merely  suspended  and  not  abro- 
gated by  war  between  the  parties.  It  would  seem  as 
if  no  valid  argument  could  be  made  in  favour  of  sus- 
pension because  the  effect  of  the  rule  would  be  to 
revive  and  perpetuate  an  inequitable  and  unjustifiable 
act.  Morally  and  legally  the  Chinese  Government 
was  right  in  denouncing  the  treaty  and  agreements 
with  Germany  and  in  treating  the  territorial  rights 
acquired  by  coercion  as  extinguished.  It  would  ap- 
pear, therefore,  that,  as  the  Japanese  Government 
recognised  that  the  rights  in  the  Province  of  Shan- 
tung had  not  passed  to  Japan  by  the  forcible  occu- 
pation of  Kiao-chow  and  the  German  concessions, 
those  rights  ceased  to  exist  when  China  declared  war 
against  Germany,  and  that  China  was,  therefore,  en- 
titled to  resume  full  sovereignty  over  the  area  where 
such  rights  previously  existed."  In  another  place, 
Mr.  Lansing  admitted  that  "this  view  of  the  extin- 
guishment of  the  German  rights  in  Shantung  was 
manifestly  the  just  one  and  its  adoption  would  make 
for  the  preservation  of  permament  peace  in  the  Far 
East." 

With  the  abrogation  of  the  lease  convention,  the 
Kiao-chow  territory  automatically  reverted  back  to 
China.  All  the  jurisdictional  rights  which  she  had 
given  up  in  favour  of  Germany  within  the  territory 
for  ninety-nine  years,   China  now  resumed   once 


72    THE  CHINO-JAPANESE  TREATIES 

again.  Legally,  therefore,  the  territory  ceased  to  be 
German  leased  territory,  and  Germany  could  have  no 
more  claim  to  it.  At  the  same  time,  it  may  be 
pointed  out,  Japan  has  been  occupying  the  territory 
which  has  long  ceased  to  be  under  German  jurisdic- 
tion. Japan  has  been  occupying,  as  a  matter  of  fact, 
the  territory  not  of  an  enemy,  but  of  a  friendly 
neighbour  and  of  a  co-belligerent  during  the  war. 

The  point  which  we  should  particularly  emphasis 
here  is  the  fact  that  the  reversion  of  the  German 
leased  territory  to  China  means  the  disappearance 
of  the  object — or,  at  least,  one  of  the  objects — of 
the  Chino-Japanese  treaties  of  1915.  It  was  in  the 
"Treaty  Respecting  the  Province  of  Shantungf '  that 
the  Chinese  Government  was  forced  to  g^ve  "full 
consent"  to  whatever  arrangement  which  Japan 
might  come  to  with  Germany  "relating  to  the  dis- 
position of  all  rights,  interests  and  concessions 
which  Germany,  by  virtue  of  treaties  or  otherwise, 
possesses  in  relation  to  the  Province  of  Shantimg." 
And  it  was  in  one  of  the  diplomatic  notes  exchanged 
and  attached  to  the  said  treaty  that  Japan  under- 
took to  restore  the  Kiao-chow  leased  territory  to 
China.*     Our  question  here  is:  Inasmuch  as  the 

♦  Japan  undertook  to  restore  the  Kiao-chow  leased  territory 
to  China,  when  it  was  left  to  her  free  disposal,  on  the  con- 
dition that  (1)  the  whole  of  Kiao-chow  Bay  should  be 
opened  as  a  commercial  port;  (2)  that  a  concession  under 
the  exclusive  jurisdiction  of  Japan  should  be  established  at 
a  place  designated  by  the  Japanese  Government;  (3)  that  an 
international  concession,  if  the  foreign  Powers  should  desire 
it,  would  be  established,  and  (4)  the  public  buildings  and 
properties  of  Germany  could  be  disposed  of  according  to 
mutual  agreement 


OF  MAY  25,  1915  73 

German  leased  territory  reverted  back  to  China  upon 
the  abrogation  of  the  lease,  why  should  Japan  fur- 
ther insist  upon  restoring  it  to  China?  Inasmuch  as 
the  rights  and  privileges  which  Germany  had  held 
in  Shantung  were  also  taken  over  by  China  upon 
the  abrogation  of  the  lease  convention,  why  should 
Japan  insist  upon  China  to  give  "full  consent"  to  a 
further  disposition  of  them?  The  Chino-Japanese 
treaties  were  concluded  May  25,  1915.  One  of  the 
objects  of  these  treaties  was  the  disposition  of  the 
German  leased  territory  and  German  rights  and 
interests  in  Shantung.  On  August  14,  China  de- 
clared war  against  Germany,  which  fact  abrogated 
the  lease  convention  of  1898.  Both  the  leased  terri- 
tory and  all  other  German  rights  and  interests  re- 
verted back  to  China.  Thus,  before  Japan  could 
come  to  any  arrangement  with  Germany,  and  before 
the  terms  of  the  1915  treaties  in  regard  to  Shan- 
tung could  be  carried  out,  China  resumed  full  sov- 
ereignty over  the  leased  territory  and  took  bade 
German  interests  and  rights  in  Shantung.  Strictly 
speaking,  therefore,  the  principal  object,  if  not  the 
only  object,  of  the  Chino-Japanese  treaties  of  1915 
disappeared  with  the  abrogation  of  the  lease  con- 
vention, and  with  the  disappearance  of  the  principal 
object  the  said  treaties  could  hardly  remain  opera- 
tive. According  to  the  accepted  principles  of  Inter- 
national Law,  treaties  become  null  and  void  when 
their  objects  cease  to  exist  It  is  safe  to  assume, 
therefore,  unless  the  contrary  has  been  proved  to  be 


74    THE  CHINO-JAPANESE  TREATIES 

law,  the  treaties  under  consideration  are  void 
through  the  extinction  of  the  German  lease  and  of 
other  concessions  which  were  also  based  upon  the 
lease  convention.  There  is  no  difference,  as  far  as 
can  be  ascertained,  in  law  or  usage,  between  the 
physical  disappearance  of  a  material  object  as  in  the 
case  of  an  island  referred  to  by  Professor  Oppen- 
heim  and  the  legal  extinction  of  a  grant  such  as  the 
German  {X)ssession  in  the  Province  of  Shantung. 

The  above  points  are,  of  course,  concerned  with 
only  one  part  of  the  Chino-Japanese  treaties  of  May 
25,  1915,  the  German  possessions  in  the  Shantung 
province.  As  the  treaties  in  question  have  dealt 
with  many  other  subjects,  such  as  the  Manchurian 
question,  the  Mongolian  question,  and  the  Han- 
yehping  Works,  it  may  be  asked  if  all  the  treaties 
and  exchanged  notes  are  thus  rendered  null  and 
void.  As  to  this  question,  the  opinions  of  interna- 
tional lawyers  are  varied,  although  the  practice  of 
the  civilised  nations  is  almost  imiform.  There  are 
authorities  of  International  Law  of  great  repute  who 
hold  that  the  stipulations  of  a  treaty  or  connected 
treaties  are  one  and  inseparable,  and  consequently 
that  they  shall  fall  and  stand  together;  others  have 
maintained  that  the  nullity  of  the  one  does  not  mean 
the  nullity  of  all  the  others;  and  there  are  still  a 
third  group  of  authorities  of  International  Law  who 
have  made  a  distinction  between  the  principal  and 
the  secondary  articles  and  regard  the  voidance  of  the 
principal  articles  only  as  destructive  of  the  binding 


OF  MAY  25,  1915  75 

force  of  the  entire  treaty  or  treaties.  Whatever 
might  be  the  opinions  of  the  international  publicists, 
the  established  practice  of  the  civilised  nations  is 
that  there  is  no  distinction  between  the  essential  and 
the  non-essential  parts  of  a  treaty  or  treaties,  and 
that  the  breach  of  any  portion  of  the  agreement 
render  the  whole  compact  void.  In  other  words,  the 
validity  of  a  treaty  or  connected  treaties  is  to  be 
taken  collectively.  If  one  part  of  the  treaty  or  trea- 
ties is  rendered  void,  the  rest  also  loses  its  binding 
force.  The  doctrine  of  rebtts  sic  stantibus  and  the 
principle  of  the  extinction  of  the  object  of  a  treaty 
concern  only  with  the  Shanttmg  provisions  of  the 
1915  treaties.  But  as  these  provisions  are  rendered 
void  because  of  the  vital  change  of  circumstances 
that  has  taken  place  since  May  25,  1915,  and  be- 
cause of  the  legal  extinction  of  the  one  of  the  ob- 
jects of  these  treaties,  they  are,  one.  and  all,  ren- 
dered null  and  void.  In  point  of  law,  this  seems  to 
be  the  only  possible  position. 


VII 
DURESS  AS  A  GROUND  FOR  ABROGATION 

ABOVE  all  the  arguments  for  the  abrogation 
of  the  Chino- Japanese  treaties  of  1915,  there 
is  one  which  is  legally  weak,  but  morally  im- 
answerable.  It  has  been  frequently  pointed  out  that 
China  yielded  to  the  Twenty-one  Demands  under 
the  menace  of  an  ultimatum,  and  that  the  resulting 
treaties  were,  therefore,  entered  into  under  duress. 
For  this  reason,  it  has  been  urged,  the  treaties  of 
1915  are  void. 

In  fact,  that  is  the  ground  upon  which  the  Chinese 
delegation  at  the  Peace  Conference  at  Versailles  had 
based  its  claim  for  the  abrogation  of  the  Chino- 
Japanese  treaties  of  1915,  which  were  regarded  as 
a  proper  subject  for  consideration  by  the  peace  con- 
ferees. The  treaties  in  question  should  be  abrogated, 
it  was  urged,  "because  they  were  negotiated  in  cir- 
cumstances of  intimidation  and  concluded  under  the 
duress  of  the  Japanese  ultimatum  of  May  7,  1915." 

This  argument  is  technically  weak,  it  is  to  be  ad- 
mitted. It  is,  however,  morally  strong,  and  one 
which  is  quite  unanswerable.  It  furnished  the  rea- 
son why  the  Chinese  Government,  as  pointed  out  in 
a  previous  chapter,  consented  to  the  transfer  of  the 
German  leasehold  to  Japan  without  doing  anything 
to  repudiate  it  first. 

76 


THE  CHINO-JAPANESE  TREATIES      11 

Those  who  dissent  from  the  argument  of  the  Chi- 
nese delegation  at  the  Versailles  Peace  Conference 
are  quite  right,  and  we  are  perfectly  willing  to  share 
their  view  in  the  matter  to  a  great  extent.  For, 
according  to  the  best  authorities  of  International 
Law,  and  according  to  the  established  international 
usage,  all  sovereign  States  are  equal,  and  one  is  as 
strong  as  the  other,  and  in  their  diplomatic  dealings 
there  is  nothing  to  speak  of  as  "duress"  which  can 
be  taken  as  a  valid  ground  for  the  abrogation  of 
international  agreement.  The  only  kind  of  duress 
which  enters  into  consideration  of  the  validity  of  a 
treaty  is  the  constraint  or  violence  practised  upon 
the  person  of  the  negotiators.  **The  only  kind  of 
duress  which  justifies  a  breach  of  treaty,"  observed 
Professor  T.  J.  Lawrence,  "is  the  coercion  of  a 
sovereign  or  plenipotentiary  to  such  an  extent  as  to 
induce  him  to  enter  into  arrangements  that  he  would 
never  have  made  but  for  fear  on  account  of  his  per- 
sonal safety.  Such  was  the  rentmciation  of  the 
Spanish  crown  extorted  by  Napoleon  at  Bayonne  in 
1807  from  Charles  IV  and  his  son  Ferdinand.  The 
people  of  Spain  broke  no  faith  when  they  refused  to 
be  bound  by  it  and  rose  in  insurrection  against 
Joseph  Bonaparte,  who  had  been  placed  upon  the 
throne." 

It  is  quite  in  accord  with  the  recognised  principle 
of  International  Law  to  say  that  the  plea  of  duress 
is  no  ground  for  the  abrogation  of  the  Chino- 
Japanese  treaties  of  1915,  and  it  is  but  natural  that 


78    THE  CHINO-JAPANESE  TREATIES 

Japanese  diplomats  and  writers  should  have  scorned 
the  idea  that  they  should  be  abrogated  just  because 
they  were  entered  into  under  threat  of  war,  or  "be- 
cause they  were  negotiated  in  circumstances  of  in- 
timidation and  concluded  under  the  duress  of  the 
Japanese  ultimatum  of  May  7,  1915."  It  remained 
to  Senator  Robinson  (from  Arkansas),  however,  to 
preach  a  sermon  on  the  validity  of  treaties  con- 
cluded under  duress,  in  a  language  which  deserves 
to  be  quoted : 

"It  is  said  that  China  is  pacific  and  Japan  is  a 
warlike  nation,  and  that  China  was  induced  by  fear 
of  war  with  Japan  to  enter  into  the  treaty  of  1915 
agreeing  to  whatever  arrangements  Japan  might 
make  with  Germany  concerning  the  property  and 
rights  in  Shantung.  It  is  also  claimed  that  it  is  not 
only  the  duty  of  the  United  States  to  refuse  to  rec- 
ognise this  treaty  but  that  we  should  treat  it  as  utterly 
void  because  made  under  duress. 

"This  position  seems  inconsistent  and  indefensible. 
Every  commercial  treaty  of  importance  now  in  force 
between  China  and  European  nations  is  the  result  of 
war  or  some  other  form  of  duress. 

"In  view  of  the  fact  that  the  commercial  relations 
of  nearly  all  nations  with  China  are  based  on  duress 
in  some  form,  and  in  contemplation  of  the  further 
fact  that  the  most  important  treaties  now  in  force  be- 
tween the  various  nations  are  the  outcome  of  wars — 
which,  of  course,  are  the  supreme  manifestations  of 
duress — why  then  should  the  claim  that  China  was 
induced  to  make  the  treaty  with  Japan  through  fear 


OF  MAY  25,  1915  79 

of  war  invalidate  that  treaty,  and  all  other  treaties 
with  China,  many  of  which  she  was  compelled  by  war 
to  execute,  be  left  in  force? 

"If  we  go  back  into  history  and  invalidate  every 
treaty  into  which  duress  has  entered  chaos  in  inter- 
national relations  will  result. 

"'Shall  we  assert  that  treaties  tainted  with  duress 
in  which  Japan  is  interested  must  be  invalidated  and 
at  the  same  time  recognise  English,  French,  and  Rus- 
sian compacts  with  the  Chinese  Government — com- 
pacts, for  the  most  part,  extorted  through  wars  en- 
gaged in  for  the  express  purpose  of  compelling  China 
to  yield?  Shall  we  attempt  to  make  one  rule  for 
Japan  and  a  totally  different  rule  for  other  nations? 
To  ask  the  question  is  to  answer  it."  (Cong.  Record, 
July  24,  1919.) 

This  is  a  point  well  taken  and  well  stated.  We 
agree  to  recognise  the  force  of  the  argument,  and 
there  is  little  doubt  that  the  Senator,  in  his  en- 
thusiasm for  the  defence  of  the  Versailles  treaty,  the 
Shantung  settlement,  and  incidentally  Japan,  had 
his  feet  on  solid  ground  when  he  asked  if  **we  shall 
make  one  rule  for  Japan  and  a  totally  different  rule 
for  other  nations."  Bowing  to  the  strict  interpreta- 
tion of  the  accepted  rules  of  International  Law,  for 
which  we  have  cherished  the  most  profound  respect, 
we  still  feel  safe  to  say  that  there  is  a  material  dif- 
ference, in  law  as  well  as  in  fact,  between  the  trea- 
ties concluded  under  duress  which  the  Senator  and 
other  friends  of  Japan  might  have  in  mind  and  the 


80    THE  CHINO-JAPANESE  TREATIES 

Chino-Japanese  treaties  of  May  25,  1915.  In  order 
to  see  the  material  difference  we  need  only  refer  to 
the  circumstances  under  which  these  treaties  were 
entered  into. 

At  the  time  of  the  negotiation  of  the  Twenty-one 
Demands  there  was  in  South  Manchuria,  in  Central 
China,  in  Tien-tsin,  in  Fukien,  and  in  Shantung, 
an  unusually  large  number  of  Japanese  soldiers  who 
were  ordered  ready  for  any  eventuality  at  a  mo- 
ment's notice.  These  forces  alone  were  quite  suf- 
ficient to  overrun  the  whole  of  China  by  seizing  all 
the  strategical  points  and  cutting  off  all  the  means 
of  communication.  When  the  negotiation  reached  a 
point  where  force  would  succeed  in  what  diplomacy 
had  failed,  additional  divisions  of  Japanese  troops 
were  despatched  to  China,  some  to  Tsinanfu,  the 
capital  of  Shantung,  some  to  Hankow,  the  Chicago 
of  China,  and  some  to  South  Manchuria  which  has 
already  been  a  Japanese  military  stronghold,  and  a 
Japanese  fleet  was  also  ordered  to  China  to  assist 
in  the  demonstration.  All  this,  it  ought  to  be  clearly 
borne  in  mind,  happened  when  the  diplomatic  nego- 
tiation regarding  the  Twenty-one  Demands  was  still 
pending.  And  then  amidst  this  military  and  naval 
glare,  the  Japanese  Minister  in  Peking  quietly  called 
at  the  Chinese  Foreign  Office  at  3  :00  p.m..  May  7, 
and  presented  the  ultimatum  for  which  "a  satisfac- 
tory reply"  was  expected  within  a  little  over  forty- 
eight  hours.  "It  is  hereby  declared  that  if  no  satis- 
factory reply  is  received  before  or  at  the  specified 


OF  MAY  25,  1915  81 

time  the  Imperial  Government  will  take  such  steps  as 
they  may  deem  necessary."  The  Chinese  Govern- 
ment was  fully  aware  of  the  consequences  that  would 
follow  in  case  of  further  refusal  to  yield.  It  could 
only  mean  war,  and  a  war  between  China  and  Japan, 
at  a  time  when  the  western  Powers  were  engaged 
in  the  desperate  struggle  with  Germany  would  fur- 
nish the  very  opportunity  which  the  Japanese  im- 
perialists have  long  looked  for  to  carry  out  their 
expansion  schemes  on  the  continent.  Furthermore, 
by  going  to  war  with  Japan  who  was  then  at  war 
with  the  Teutonic  Powers,  China  would  under  the 
force  of  such  anomalous  circumstances  place  herself 
on  the  side  of  Germany.  This  position  she  was 
bound  to  take  sooner  or  later.  In  such  a  case  no 
one  need  be  a  prophet  in  order  to  see  what  dire 
consequences  might  await  the  Allies  and  what  dread- 
ful complications  might  arise  between  the  Allies, 
China,  and  Japan. 

These  are  the  facts  in  the  case  in  the  light  of 
which  it  is  easy  to  realise  the  truthfulness  of  the  plea 
by  the  Chinese  peace  delegation  that  the  1915  trea- 
ties were  entered  into  under  "circimistances  of  in- 
timidation and  duress."  What  we  want  to  point  out 
specially,  however,  is  that  there  is  a  material  differ- 
ence between  the  treaties  entered  into  under  duress 
which  Senator  Robinson  had  in  mind  and  the  Chino- 
Japanese  treaties  of  1915.  We  have  no  hesitation 
in  agreeing  with  the  Senator  that  war  is  the  supreme 
manifestation  of  duress  and  that  treaties  concluded 


82    THE  CHINO-JAPANESE  TREATIES 

after  war  are  valid.  But  it  must  be  remembered 
that  the  Chino- Japanese  treaties  of  1915  were  not 
the  outcomes  of  war.  There  was  no  war  between 
China  and  Japan  in  1915,  or  since.  Indeed,  on  the 
contrary,  these  two  countries  were  friendly  neigh- 
bours and  co-belligerents  against  Germany.  It  is 
legitimate,  as  far  as  the  international  usage  obtains 
at  present,  for  the  victor  to  dictate  terms  to  the  van- 
quished in  an  international  conflict,  as  the  Allies 
dictated  to  Germany,  and  the  forthcoming  treaty 
which  will  necessarily  be  concluded  under  duress 
will  be  held  valid.  This  is  the  established  practice, 
of  which  a  change  for  the  better  is  yet  to-  be  hoped 
for  in  the  more  enlightened  days  to  come.  It  is 
hardly  proper,  however,  it  is  at  least  morally  inde- 
fensible, for  one  strong  power  to  exact  severe  terms 
from  another  weak  but  friendly  power,  under  the 
threat  of  war,  and  with  no  reason  whatsoever,  ex- 
cept, perhaps,  the  imperialistic  designs  of  the  strong. 
China  and  Japan,  ever  since  the  day  when  they 
measured  their  strength  in  the  Liaotung  peninsula, 
have  been  friendly  neighbours,  and  in  the  struggle 
against  the  Teutonic  powers  they  were  allies.  Why, 
then,  should  Japan  press  those  Twenty-one  Demands 
on  China,  and  force  her  to  sign  the  1915  treaties 
with  an  ultimatum,  the  terms  of  which  could  not 
have  been  any  worse  had  they  been  at  war  with  each 
other  and  China  had  been  the  defeated  party?  Why 
should  Japan  treat  her  friendly  neighbour  even 
worse  than  her  avowed  enemy?    The  Twenty-one 


OF  MAY  25,  1915  83 

Demands  were  worse  and  far  more  damaging  to 
China's  sovereignty  than  the  eleven  demands  which 
Austria  had  presented  to  Serbia,  whose  refusal  to 
accept  led  to  the  outbreak  of  the  European  war,  and 
the  treaties  embodying  those  demands  were  nego- 
tiated and  concluded  under  the  most  immoral  form 
of  duress — the  kind  of  duress  exerted,  not  by  one 
enemy  upon  another  enemy,  but  by  one  friendly 
power  upon  another  friendly  power.  China  yielded 
under  duress,  not  only  to  save  an  armed  conflict 
between  herself  and  Japan,  which  was  sure  to  fol- 
low in  case  of  her  refusal,  but  also  to  avert  the 
allied  Powers  from  the  most  disastrous  result  of 
such  a  conflict.  If  the  1915  treaties,  concluded  as 
they  were  under  these  circumstances,  were  permitted 
to  stand,  then  the  strong  powers  would  be  forever 
free  to  dictate  the  terms  they  like  to  the  weak  na- 
tions. If  such  is  peace,  then  war  is  infinitely  better, 
for  although  war  is  said  to  be  hell,  peace  like  this 
is  something  infinitely  worse. 

On  the  other  hand,  had  China  and  Japan  been  ene- 
mies instead  of  friends,  had  they  been  at  war  with 
each  other  instead  of  at  peace,  the  treaties  of  1915 
might  be  then  on  a  different  status.  War  is  the  su- 
preme manifestation  of  duress,  says  Senator  Robin- 
son, and  he  therefore  holds  that  treaties  concluded 
after  war  are  valid.  We  have  no  fault  to  find  with 
this  general  assertion,  but  at  the  same  time  we  can- 
not help  but  recall  the  treaties  of  Brest-Litovsk  and 
Bucharest  as  the  most  striking  and  recent  excep- 


84    THE  CHINO-JAPANESE  TREATIES 

tions.  The  treaty  of  Brest-Litovsk  and  the  treaty 
of  Bucharest  were  the  two  treaties  which  Germany 
had  entered  into  respectively  with  Russia  and  Ru- 
mania after  the  contracting  parties  had  agreed  to 
end  the  war.  They  were  concluded  under  duress, 
no  doubt,  and  in  point  of  law,  they  were  vahd  in 
spite  of  the  onerous  terms  contained  therein.  In 
the  armistice  terms,  however,  Germany  was  made  to 
agree  to  the  abrogation  of  these  two  treaties,  appar- 
ently for  no  other  reason  than  they  were  concluded 
under  duress  and  their  terms  were  unbearable  to 
Russia  and  Rimiania.  It  must  be  imderstood  that 
Russia  and  Rumania  were  enemies  of  Germany,  and 
these  two  treaties  were  the  direct  outcomes  of  the 
European  War.  It  may  fairly  be  asked  that  if  such 
treaties  could  be  abrogated  under  the  plea  of  duress, 
why  could  not  the  Chino-Japanese  treaties  of  1915 
be  also  abrogated?  It  would  be  ridiculous  to  think 
that  Japan,  a  friendly  power,  had  a  better  right  to 
impose  onerous  terms  on  China,  another  friendly 
power,  than  one  enemy  might  have  to  impose  on 
another  enemy. 

The  Senator  seems  to  have  entertained  the  fear 
that  "if  we  go  back  into  history  and  invalidate  every 
treaty  into  which  duress  has  entered  chaos  in  inter- 
national relations  will  result."  But  he  can  rest  as- 
sured that  China  will  not  be  the  disturbing  cause. 
China  is  not  asking,  nor  has  she  ever  asked,  for  the 
abrogation  of  the  Anglo-Chinese  treaty  of  1842 
which  ceded  Hongkong  to  Great  Britain,  the  Shi- 


OF  MAY  25,  1915  85 

monoseki  treaty  of  1895  which  ceded  Formosa  and 
Pescadores  to  Japan,  or  any  other  treaty  which  was 
entered  into  with  China  largely  as  a  result  of  war  or 
duress.  Having  appealed  to  the  force  of  arms  to 
decide  the  opium  issue  in  1841,  and  again  in  1894 
to  decide  the  Korean  question,  China  was  great 
enough  to  accept  the  consequences  of  an  interna- 
tional war  and  to  bear  the  burdens  of  a  defeated 
battle.  But  as  to  the  Chino-Japanese  treaties  of 
1915,  it  was  not  a  case  of  war  consequences.  It  was 
a  case  of  a  strong  Power  imposing  its  will  upon  the 
weaker.  It  was  a  case  of  highway  robbery,  pure 
and  simple.  It  appears  in  still  worse  light  when  we 
remember  that  the  robber  and  the  robbed  are  pro- 
fessed friends.  If  such  treaties  were  not  to  be  abro- 
gated, and  if  such  immoral  practice  were  to  be  coun- 
tenanced in  international  dealings,  then,  indeed,  to 
quote  the  Senator,  "chaos  in  international  relations 
will  result."  The  strong  Powers,  under  the  pretext 
of  friendship,  would  be  forever  free  to  do  whatever 
they  please  with  the  weak,  and  before  there  is  time 
enough  to  "make  the  world  safe  for  democracy," 
there  will  be  no  democracy  left  to  make  the  world 
safe  for. 

On  this  question  of  the  abrogation  of  the  Chino- 
Japanese  treaties  of  1915,  Chinese  opinion  is  unani- 
mous. To  give  but  one  instance  we  quote  an  edi- 
torial from  the  Peking  Leader,  an  English  paper, 
published  and  edited  by  the  Chinese.  "These  trea- 
ties were  devoid  of  any  legal  foundation ;  they  were 


86    THE  CHINO-JAPANESE  TREATIES 

extorted  at  the  point  of  bayonet.  They  were  not 
negotiated  willingly  but  were  forced  upon  us  by  the 
show  of  superior  force.  And  China  never  agreed 
to  them,  but  her  consent  was  overborne  by  force 
majeure.  Here  is  a  case  which  primarily  calls  for 
the  vindication  of  justice.  Hade  there  been  provoca- 
tion on  the  part  of  China  the  situation  might  have 
been  different,  but  all  the  while  it  was  the  stronger 
power  who  was  the  provocator.  The  world  rejoices, 
indeed,  in  the  abrogation  of  the  Brest-Litovsk  and 
Bucharest  treaties  which  Germany  had  forced  upon 
Russia  and  Rumania.  If  so,  the  same  immutable 
justice  demands  that  the  1915  treaties  should  also 
be  forthwith  abrogated,  since  unlike  Russia  and 
Rumania  there  were  no  hostilities  between  China 
and  Japan,  but  equally  with  them,  this  country 
(China)  is  also  a  co-partner  with  the  other  Allies. 
Let  it  not  be  said  or  implied  that  east  of  Suez  the 
standard  of  justice  varies  from  that  which  obtains 
west  of  that  waterway"  (Peking  Leader,  Jan.  4, 
1919).  Senator  Robinson  is  anxious  that  there 
should  not  be  "one  rule  for  Japan  and  a  totally  dif- 
ferent rule  for  other  nations."  The  Chinese  people 
are  apparently  also  anxious  that,  in  view  of  the  abro- 
gation of  the  treaties  of  Brest-Litovsk  and  Bucha- 
rest, there  should  not  be  one  rule  for  the  E^t  and 
a  totally  different  rule  for  the  West. 


VIII 
TRANSFER  IRREGULAR  AND  ILLEGAL 

THERE  are  other  things  which  we  must  take 
into  consideration.  What  is  to  be  pointed 
out  in  particular  is  that  the  entire  procedure 
adopted  in  1915  for  the  transference  of  the  German 
rights  in  Shantung  to  Japan  was  an  absolute  de- 
parture from  the  safe  and  sound  precedent  which 
she  herself  had  established  in  1905.  We  recall  that 
in  the  peace  negotiations  at  Portsmouth  after  the 
conclusion  of  the  Russo-Japanese  War,  the  Japanese 
delegates  demanded,  apart  from  the  cession  of 
Sakhalien  Island  and  a  big  indemnity,  the  transfer 
of  the  Russian  leases  and  concessions  in  South 
Manchuria.  We  also  recall  how  nearly  the  peace 
negotiations  were  brought  on  the  verge  of  break- 
ing-up,  due  to  the  Japanese  insistence  on  their  de- 
mands on  the  one  hand  and  the  persistent  refusal 
by  the  Russian  delegates  on  the  other.  Thanks  to 
the  mediation  of  President  Roosevelt,  however,  the 
Russian  delegates  were  persuaded  to  agree  to  the 
transfer,  on  the  condition  that  China's  consent  to 
such  an  arrangement  should  be  secured.  Then  after 
the  conclusion  of  the  peace,  Japan,  as  the  prospective 
successor  to  the  Russian  leaseholds  and  Russian  con- 

87 


88    THE  CHINO-JAPANESE  TREATIES 

cessions  in  South  Manchuria,  came  to  China  for  her 
«   consent  to  this  transfer,  and  the  consent  was  given 
which  was  embodied  in  the  Chino-Japanese  Con- 
»   vention  of  December  22,  1905. 

In  connection  with  this  arrangement,  two  things 
of  importance  are  noticeable.  First,  Japan  had 
negotiated  the  transfer  directly  with  Russia,  one  as 
the  victor  of  the  war  and  the  other  as  the  defeated 
party.  Secondly,  China's  consent  was  obtained  after 
Russia,  the  lessee  and  the  legal  holder  of  all  the 
economic  concessions  granted  to  her  by  China  in 
South  Manchuria,  had  agreed  to  the  transfer  her- 
self. It  was,  of  course,  very  significant  that  Russia 
had  insisted  that  the  proposed  transfer  should  be 
subject  to  China's  consent.  This  was  a  definite  and 
proper  acknowledgment  of  China  as  the  real  owner 
of  the  territories  and  properties  in  question.  It  was 
still  more  significant,  however,  that  China's  consent 
should  have  been  obtained,  not  before  but  after, 
Russia  herself  had  agreed  upon  the  transfer  through 
her  delegates  at  the  peace  conference  at  Portsmouth. 
In  other  words,  China  gave  her  consent  after  the 
fortunes  of  the  war  had  been  decided  and  after 
Russia  had  admitted  her  defeat  in  ceding  the  Chi- 
nese concessions  to  Japan.  This  appeared  to  be  the 
only  legal  way,  and  therefore  the  only  correct  way, 
of  settling  the  dispute. 

Now  what  was  the  step  which  Japan  took  in  ef- 
fecting the  transfer  of  the  German  lease  and  rights 
in  Shantung?    The  step,  it  is  but  fair  to  admit,  was 


OF  MAY  25,  1915  89 

a  radical  departure  from  the  Portsmouth  precedent 
and  one  which,  unless  actuated  by  the  most  selfish 
motives,  Japan  would  not  have  adopted.  She  re- 
sorted to  the  most  reprehensible  method  by  present- 
ing the  Twenty-one  Demands  to  the  Chinese  Gov- 
ernment at  a  time  when  the  entire  world  was  en- 
gaged in  the  war  against  Germany  and  pressing 
them  for  acceptance  before  the  world  could  have 
time  to  know  just  what  they  were.  In  striking  this 
coup  de  force,  Japan  not  only  forgot  the  fact  that 
the  war  was  still  going  on  and  its  fortunes  had  not 
yet  been  decided,  not  only  neglected  the  fact  that 
China,  as  a  neutral  then  and  on  friendly  terms  with 
Germany,  could  have  no  right,  moral  or  legal,  to 
deprive  of  Germany  what  was  already  leased  and 
granted  to  her,  but  also  disregarded  the  elementary 
rule  of  International  Law  that,  Germany,  as  the 
lessee  and  the  holder  of  the  concessions  in  Shan-  )Ky 
tung,  should  have  been  consulted  first  before  China 
could  have  anything  to  say  in  the  matter,  and  that 
Germany's  agreement  to  the  transfer  should  have 
been  secured  first,  as  Russia's  consent  was  first 
secured  in  1905,  before  China  would  give  hers. 
This  is  as  it  should  be,  for  China  could  under  no 
circumstances  lease  or  transfer  to  Japan  what  she 
had  already  leased  to  Germany  without  Germany's 
assent.  Now,  without  waiting  for  the  final  de- 
cision of  the  post-bellum  conference  in  which  Japan 
and  Germany  could  agree  upon  the  transfer  them- 
selves first,  as  Japan  and  Russia  had  agreed  at  the 


^ 

} 


90    THE  CHINO-JAPANESE  TREATIES 

Portsmouth  conference,  Japan,  by  means  of  an  ulti- 
matum of  May  7,  1915,  forced  from  the  Chinese 
Government  the  consent  as  it  was  now  embodied  in 
the  treaty  of  1915  relating  to  the  Shantung  Prov- 
ince. The  entire  procedure  is,  to  say  the  least,  like 
putting  the  cart  before  the  horse.  It  is  at  once 
ridiculous  and  impossible. 

Now  let  us  analyse  it  in  a  more  clear  fashion. 
Chronologically,    the    Twenty-one    Demands    were 
I         presented  to  the  Chinese  Government  on  January  18, 
*         1915,   and  the  treaties  embodying  a  majority  of 
these  demands  were  signed  on  May  25,  of  the  same 
year.    The  Chinese  Government  was  made  to  agree 
against  its  own  will  "to  give  full  assent  to  all  m.at- 
ters  upon  which  the  Japanese  Government  may  here- 
j      after  agree  with  the  German  Government  relating 
l\i       to  the  disposition  of  all  rights,  interests,  and  con- 
cessions which  Germany,  by  virtue  of  treaties  or 
otherwise,  possesses  in  relation  to  the  province  of 
;     Shantung."     When  this  undertaking  was  entered 
\     into,   the   war   in   Europe,    of   which   the   Anglo- 
Japanese  expedition  against  Tsingtao  was  but  one 
incident,  had  yet  to  be  fought  out.    In  other  words, 
the   Twenty-one  Demands  were  presented   to  the 
Chinese    Government    and    the    resulting    treaties 
were    signed  -flagrante   hello.     There  was    no   in- 
dication then  that   the  strength   of   the   Teutonic 
Allies    was   waning,    and   no    one    could    foretell 
just  with  whom   the   fortune   of   the  war  would 
lie.       In    January    or    even    in    May,    1915,    if 


OF  MAY  25,  1915  91 

we  recollect  correctly,  Germany  and  her  allies 
were  at  the  height  of  success  in  their  military 
operations  in  the  Western  front.  Germany  stood 
then  a  good  chance  to  win  the  war  if  the  allied 
Powers  had  not  exerted  to  the  last  ounce  of  their 
energy  and  if  the  United  States  had  not  come  to 
their  rescue.  It  was  therefore  perfectly  evident  that, 
in  exacting  the  concession  from  the  Chinese  Govern- 
ment as  stipulated  in  the  treaties  of  1915,  Japan 
had  taken  too  much  for  granted.  That  is,  "China 
is  made  to  concur  with  the  Japanese  attitude  of 
mind  that  Germany  is  as  good  as  vanquished,  and 
therefore  China  must  agree  beforehand  with  Japan 
to  whatever  Japan  may  agree  with  Germany  when 
the  war  is  ended."  Such  a  precipitating  arrange- 
ment, there  is  no  denying,  was  devoid  of  all  coim- 
sels  of  wisdom  and  prudence.  Fortunately,  the  na- 
tion which  challenged  the  whole  world  by  ruthlessly 
tramping  under  feet  all  that  is  sacred  and  precious 
in  law  and  in  order  was  beaten  to  its  knees,  and  the 
war  was  won.  Should,  on  the  other  hand,  Germany 
have  come  out  victorious  and  the  Allies  have  been 
beaten,  the  whole  structure  of  the  Chino-Japanese 
treaties  of  1915  relating  to  Shantung  would  have 
fallen  to  the  ground.  Germany  would  have  retained 
all  her  possessions  in  Shantung;  China's  consent  to 
the  transfer  would  have  been  absolutely  meaning- 
less ;  and  Japan,  as  an  aspirant  to  the  rich  German 
possessions,  would  have  been  rudely  disappointed, 
and  perhaps,  made  to  pay  for  her  temerity  in  extort- 


rV 


92    THE  CHINO-JAPANESE  TREATIES 

ing  such  an  arrangement  from  the  Chinese  Govern- 
ment! 

But  the  validity  or  invalidity  of  the  Chino- 
Japanese  treaties  of  1915 — particularly  the  pro- 
vision on  the  disposal  of  the  German  leased  terri- 
tory and  the  German  concessions  in  Shanttmg — can 
be  better  tested  in  this  fashion.  According  to  the 
first  article  of  the  "Treaty  respecting  the  province  of 
Shantung,"  China  undertakes  to  consent  to  whatever 
arrangements  Japan  may  make  with  Germany  after 
the  war.  And  according  to  one  of  the  notes  at- 
tached to  the  treaty,  Japan  undertakes  to  restore 
Kiao-chow  to  China  on  the  condition  that  Japan, 
among  other  things,  should  be  granted  an  exclusive 
concession.  Now,  as  we  have  asked  before,  should 
Germany  have  come  out  victorious  in  the  war  and 
dictated  the  terms  of  peace,  would  Japan  have  con- 
sidered herself  as  bound  by  the  treaty?  and  if  so, 
could  she  restore  Kiao-chow  to  China  as  she  under- 
takes to  ?  and  how  ?  We  know,  of  course,  that  this 
is  contrary  to  the  fact.  We  put  forth  this  imaginary 
question  only  to  show  that  if  Japan  insists  upon  the 
operation  of  the  treaties  of  1915,  she  might  in  such 
a  contingency  find  herself  legally  bound  to  restore 
the  Kiao-chow  territory  to  China  and  yet  physically 
unable  to  do  so.  Such  premature  arrangement — it 
was  premature,  for  it  did  not  wait  for  the  final 
outcome  of  the  war,  is  thus  seen  unwise,  imprudent, 
and  sometimes  impossible  of  execution.  If  Japan 
could  not  be  bound  by  the  treaty  provisions  in  such 


OF  MAY  25,  1915  93 

a  contingency,  how  could  China  be  expected  to  abide 
by  them  under  circumstances  totally  different  from 
those  contemplated  ? 

Now  it  is  quite  possible  that  Japan  may  fall  back 
upon  the  doctrine  of  uti  possidetis  to  justify  her 
retention  of  the  German  concessions  in  Shantung. 
Indeed,  some  of  the  Japanese  writers  and  even  re- 
sponsible Japanese  statesmen  have  more  than  once 
pointed  out  that  China's  declaration  of  war  against 
Germany  could  not  abrogate  the  lease  and  there- 
fore could  not  affect  the  leased  territory  which  has 
already  been  captured  and  occupied  by  Japan.     In 
other  words,  they  have  based  their  contention  on  one 
phase  of  the  uH  possidetis  doctrine — the  physical 
possession  or  occupation.    This  is  a  very  plausible 
argument,  as  far  as  it  goes.     But  no  one  need  be 
an  International  Law  expert  in  order  to  see  that  the 
contention  has  a  very  thin  legal  foundation.    To  put 
in  non-technical  language,  the  doctrine  of  uti  possi- 
detis signifies  that  at  the  conclusion  of  peace,  one 
belligerent  may  keep  all  the  enemy  territory  which 
he  has  occupied  or  is  occupying,  unless  the  treaty 
of  peace  excluded  that  tacit  understanding  by  ex- 
press provisions.     Now  in  the  case  of  Kiao-chow 
Bay,  of  which  Japan  has  considered  herself  as  the 
sole  occupant,  it  is  as  evident  as  daylight  that  the 
doctrine  of  uti  possidetis  could  not  be  held  to  apply, 
at  the  time  when  the  Chino-Japanese  treaties  were 
concluded.     In  the  first  place,  the  doctrine  of  uti 
possidetis  could  not  come  into  operation  until  at  the 


94    THE  CHINO- JAPANESE  TREATIES 

end  of  the  war,  and  it  could  certainly  not  be  pre- 
sumed to  have  operated  in  May,  1915,  when  the 
Chino- Japanese  treaties  were  concluded.  Strictly 
speaking,  even  at  the  end  of  the  war  it  could  not 
be  resorted  to,  unless  there  was  nothing  to  be  said 
about  the  German  possessions  in  Shantung  in  the 
forthcoming  peace  treaty,  for  the  doctrine  signifies 
that  at  the  conclusion  of  peace  one  belligerent  may 
keep  all  the  enemy  territory  which  he  has  occupied 
or  is  occupying,  unless  the  treaty  of  peace  excluded 
that  tacit  understanding  by  express  provisions. 
Furthermore,  with  China's  participation  in  the  war 
which  abrogated  the  lease  convention,  the  Kiao-chow 
territory  ceased  to  be  an  enemy  territory.  The  terri- 
tory, together  with  the  rights  and  properties  apper- 
taining to  it,  reverted  back  to  China,  the  original 
lessor.  China  and  Japan  were  friendly  neighbours 
and  allies  in  the  war.  How  could  Japan  then  invoke 
the  doctrine  of  uti  possidetis  in  order  to  keep  what 
really  belonged  to  an  ally  ?  In  the  bygone  ages,  pos- 
session means  nine  points  of  law.  It  is  difficult  to 
believe  that  such  is  still  the  practice  obtaining  in  this 
civilised  age. 

Furthermore,  do  we  not  remember  that  the  lease 
was  non-transferable?  Under  the  fifth  article  of  the 
lease  convention,  it  was  stipulated  that  Germany 
was  not  to  sublet  the  territory  leased  from  China  to 
another  Power.  And  it  was  a  clear  implication  that 
China  was  not  to  transfer  it  to  a  third  Power  while 
Germany  was  holding  it.     In  giving  her  consent  to 


OF  MAY  25,  1915  95 

whatever  arrangements  which  Japan  might  make 
with  Germany  after  the  war,  China  agreed  to  some- 
thing which  she  should  have  not  agreed  to.  It  was 
at  once  an  unfriendly  and  illegal  act  on  the  part  of 
China,  At  the  time  when  the  Chino-Japanese  trea- 
ties of  May,  1915,  were  concluded,  as  we  have 
pointed  out  before,  China  was  a  neutral,  taking  no 
part  in  the  war  and  remaining  on  friendly  terms 
with  Japan  as  well  as  with  Germany.  The  lease  was 
as  good  then  as  it  was  when  first  granted.  China 
could,  as  the  lessor,  cancel  the  lease  on  any  jus- 
ticiable ground,  but  she  certainly  had  no  right  to 
give  it  to  Japan,  while  she  had  done  nothing  to  abro- 
gate the  lease. 


CONCLUSION 

ENOUGH  has  been  said,  in  the  previous 
chapters,  about  the  voidance  of  the  Chino- 
Japanese  treaties  of  1915.  If,  however,  ad- 
ditional arguments  are  required,  we  need  only 
remember  that  the  provisions  of  the  said  treaties  are 
absolutely  incompatible  with  the  sovereignty  of 
China,  with  the  right  of  self-preservation  and  self- 
development,  and  with  the  fundamental  principles 
of  the  League  of  Nations.  China  is  required  to 
build  her  railways  in  her  own  territory  only  with 
Japan's  consent;  China  is  required  to  employ  Jap- 
anese advisers  in  preference  to  those  of  other  na- 
tionalities ;  China  is  required  to  give  her  mines,  coal, 
gold,  and  iron,  so  that  they  can  be  operated  by 
Japanese  and  with  Japanese  capital;  China  is  re- 
quired not  to  build  dockyards,  arsenals,  or  other 
naval  equipments  in  one  of  her  own  provinces; 
China  is  required  not  to  borrow  foreign  capital 
other  than  Japanese  for  the  development  of  the  big- 
gest ironworks  in  the  country;  China  is  further  re- 
quired to  lease  her  land  to  meet  the  needs  of  the 
agricultural  enterprises  of  the  Japanese  subjects; 
and  most  outrageous  of  all,  China  is  required  to 
employ  Japanese  police  to  guard  the  Chinese  rail- 
ways. 

Without  marshalling  further  evidences,  it  is  quite 
96 


THE  CHINO-JAPANESE  TREATIES     97 

apparent  that  the  Chinojapanese  treaties  of  1915 
are  neither  compatible  with  China's  sovereignty,  nor 
with  her  right  of  self-preservation  and  self-develop- 
ment. What  Japan  seeks  to  accomplish  by  means 
of  the  treaties  of  1915  tends  to  create  new  spheres 
of  interest  and  influence  for  herself,  but  destroys 
those  for  the  other  Powers.  Remembering  the  posi- 
tion which  Japan  enjoyed  in  South  Manchuria  and 
the  numerous  economic  weapons  which  she  has  in 
her  grasp,  the  merest  t>To  of  the  Far  Eastern  situa- 
tion can  readily  see  that  Japan  would  be  practically 
enthroned  in  a  menacing  position  to  the  Chinese 
Government  and  to  the  existence  of  China  as  an 
independent  nation,  if  she  were  permitted  to  enjoy 
the  benefits  and  rights  which  she  has  obtained  in  the 
1915  treaties.  In  addition  to  Manchuria,  Japan  has 
already  made  a  sphere  of  interest  or  influence  out  of 
Shantung  for  herself.  And  in  addition  to  both 
regions,  Japan  has,  according  to  these  treaties  of 
1915,  acquired  extensive  rights  and  concessions  in 
Mongolia.  Without  going  into  the  details  as  to 
Japan's  position  in  North  China,  it  is,  therefore,  very 
easy  to  see  that  she  is  quite  able  to  control  the  whole 
area  of  northern  China,  including  Mongolia.  Her 
sphere  of  interest  in  Fukien,  and  her  attempt  to 
break  into  the  Yangtze  Valley — an  attempt  ill-con- 
cealed in  her  demand  in  regard  to  the  Hanyehping 
Ironworks,  are  the  mere  details  of  her  general  pro- 
gramme for  the  domination  of  China. 

Now  it  must  not  be  lost  sight  of  that  it  is  a  recog- 


98    THE  CHINO-JAPANESE  TREATIES 

nised  principle  of  International  Law  that  when  a 
treaty  threatens  the  self -development  and  self- 
preservation  of  a  nation,  that  treaty  ceases  to  be 
obligatory.  "Les  traites  intemationaux  ne  veuvent 
jamais  constituer  un  obstacle  permanent  au  de- 
veloppement  de  la  constitution  et  des  droits  d'un 
peuple,"  says  Bluntschli,  and  Professor  Oppenheim 
points  out  the  same  principle  when  he  says :  *'When, 
for  example,  the  existence  or  the  necessary  develop- 
ment of  a  State  stands  in  unavoidable  conflict  with 
such  State's  treaty  obligations,  the  latter  must  give 
way  for  self-preservation  and  development  in  ac- 
cordance with  the  growth  and  the  necessary  require- 
ments of  the  nation  are  the  primary  duties  of  every 
State.  No  State  would  consent  to  such  treaty  as 
would  hinder  it  in  the  fulfilment  of  these  primary 
duties."  And  Professor  John  Bassett  Moore  is  very 
explicit  in  language  on  such  a  question  when  he 
writes :  "when  performance  of  a  treaty,  for  instance, 
becomes  impossible,  non-performance  is  not  im- 
moral; so  if  performance  becomes  self -destructive 
to  the  party,  the  law  of  self-preservation  overrules 
the  laws  of  obligation  in  others."  The  noted  Italian 
publicist,  M.  Pasquale  Fiore,  seems  to  think  that  "all 
treaties  are  to  be  looked  upon  as  null  and  void  which 
are  in  any  way  opposed  to  the  development  of  the 
free  activity  of  a  nation,  or  which  hinder  the  exer- 
cise of  its  natural  rights."  We  have  not  the  slight- 
est doubt  that  the  performance  of  the  1915  treaties 
is  impossible;  it  is  incompatible  with  China's  sov- 


OF  MAY  25,  1915  99 

ereignty;  it  is  incompatible  with  her  right  of  self- 
preservation  and  self -development;  in  short,  it  is 
self -destructive.  If  performance  becomes  self- 
destructive,  the  law  of  self-preservation  overrules 
the  law  of  obligation. 

Furthermore,  it  is  inconceivable  how  Japan  can 
become  a  member  of  the  League  of  Nations  and  at 
the  same  time  insist  upon  the  enforcement  of  the 
1915  treaties  without  violating  the  fundamental 
principles  of  the  Covenant.  We  have  pointed  out 
and  proved  in  the  previous  chapters  how  the  carry- 
ing out  of  the  treaties  will  involve  a  specific  viola- 
tion of  China's  territorial  integrity  and  her  political 
independence.  Yet  territorial  integrity  and  pohtical 
independence  are  to  be  respected  and  guaranteed  by 
the  League  of  Nations.  Article  X  of  the  Covenant, 
the  retention  of  which  has  been  recommended  by 
the  Committee  on  Amendments  but  recently,  reads : 
"The  members  of  the  League  undertake  to  respect 
and  to  preserve  as  against  external  aggression  the 
territorial  integrity  and  existing  political  independ- 
ence of  all  members  of  the  League."  And  it  is  fur- 
ther stipulated  in  Article  XX,  "the  members  of  the 
League  severally  agree  that  this  Covenant  is  ac- 
cepted as  abrogating  all  obligations  and  understand- 
ings inter  se  which  are  inconsistent  with  the  terms 
thereof."  It  is  pertinent  to  ask  if  Japan,  now  a 
member  of  the  League,  will  continue  her  member- 
ship in  it  by  trampling  down  these  very  fundamental 
principles,  and  it  is  also  proper  to  ask  if  the  mem- 


100    THE  CHINO-JAPANESE  TREATIES 

bers  of  the  League  will  suffer  such  a  violence  to  its 
constitution.  According  to  the  language  of  Article 
XX,  it  is  Japan  who  should,  before  becoming  a  mem- 
ber of  the  League,  undertake  to  abrogate  the  China- 
Japanese  treaties  of  May  25,  1915,  which  are  incom- 
patible with  the  League  Covenant.  "In  case  any 
member  of  the  League,"  reads  the  second  part  of  the 
said  Article,  "shall,  before  becoming  a  member  of 
the  League,  have  undertaken  any  obligations  incon- 
sistent with  the  terms  of  this  Covenant,  it  shall  be 
the  duty  of  such  member  to  take  immediate  steps  to 
procure  its  release  from  such  obligations."  There 
is  nothing  so  simple  and  so  easy  for  Japan  to  live 
up  to  the  Covenant  of  the  League. 

It  does  not  seem  necessary  to  go  any  further  to 
argue  why  the  Chino-Japanese  treaties  of  May  25, 
1915,  should  be  abrogated.  One  reason  after  an- 
other we  have  pointed  out,  showing  in  the  first  place 
that  they  are  void  ab  initio.  We  are  not  at  all  sure 
whether  China  and  Japan,  the  contracting  parties, 
can  ever  come  to  an  amicable  settlement  of  the  dis- 
pute. It  is  not  at  all  certain  that  the  question  can 
or  will  eventually  be  settled  by  the  League  of  Na- 
tions, of  which  both  China  and  Japan  are  members, 
or  by  an  arbitration  board,  which  the  two  countries 
may  institute  for  the  purpose,  or  by  any  other  pro- 
cedure which  is  fitting  and  competent  to  take  up 
such  a  controversy.  Some  may  urge  that  tlie  ques- 
tion of  the  validity  of  the  treaties  of  1915,  and  of 
all  the  notes  attached  to  them,  can  be  properly  sub- 


OF  MAY  25,  1915  101 

mitted  for  reconsideration  at  the  Conference  on 
limitation  of  armament  at  Washington,  inasmuch  as 
it  undertakes  to  settle  problems  in  the  Pacific  and  in 
the  Far  East. 

It  is  always  to  be  understood  that  it  is  one  thing 
to  submit  a  controversy  of  this  character  to  a  con- 
gress of  Powers  for  consideration,  and  it  is  an  en- 
tirely different  matter  to  expect  a  judicious  decision 
from  it.  China  submitted  her  claim  for  the  abroga- 
tion of  these  treaties  at  the  Versailles  Peace  Con- 
ference, and  she  was  more  than  disappointed  with 
the  decision  that  the  "Big  Three'*  had  reached.  As 
far  back  as  1870,  when  the  question  of  treaty  obli- 
gations was  being  widely  discussed  apropos  of  the 
decision  by  Russia  not  to  be  bound  by  the  Treaty 
of  Paris  of  1856,  which  forbade  her  (and  Turkey) 
to  build  "militar)^-maritime  arsenals"  on  the  coast 
of  the  Black  Sea  or  to  maintain  ships  of  war  thereon, 
James  Stuart  Mill  raised  this  question:  "What 
means,  then,  are  there  of  reconciling,  in  the  greatest 
practicable  degree,  the  inviolability  of  treaties  and 
the  sanctity  of  national  faith,  with  the  undoubted 
fact  that  treaties  are  not  always  fit  to  be  kept,  while 
yet  those  who  have  imposed  them  upon  others 
weaker  than  themselves  are  not  likely,  if  they  retain 
confidence  in  their  own  strength,  to  grant  release 
from  them?"  Exactly  fifty  years  have  elapsed  since 
the  question  was  asked,  but  no  answer  has  yet  been 
found.  It  would  seem  that  the  answer  given  by 
Russia  by  taking  law  into  her  own  hands  has  not 


102    THE  CHINO-JAPANESE  TREATIES 

been  seriously  challenged.  The  Conference  of  Lon- 
don held  in  1871  to  settle  the  Black  Sea  question, 
laid  down  this  rule:  *Tt  is  an  essential  principle  of 
the  Law  of  Nations  that  no  power  can  liberate  itself 
from  the  engagements  of  a  treaty,  or  modify  the 
stipulations  thereof,  unless  with  the  consent  of  the 
contracting  powers  by  means  of  an  amicable  ar- 
rangement." While  laying  down  this  rule  as  "an 
essential  principle  of  the  Law  of  Nations,"  the  Con- 
ference of  London  did  nothing  to  call  Russia  to  task 
for  her  disregard  of  the  Treaty  of  Paris  of  1856. 
Commenting  on  the  same  rule.  Professor  T.  J.  Law- 
rence observes:  "This  doctrine  sounds  well;  but  a 
little  consideration  will  show  that  it  is  as  untenable 
as  the  lax  view  that  would  allow  any  party  to  a 
treaty  to  violate  it  on  the  slightest  pretext.  If  it 
were  invariably  followed,  a  single  obstructive  Power 
would  have  the  right  to  prevent  beneficial  changes 
that  all  the  other  states  concerned  were  willing  to 
adopt.  It  would  have  stopped  the  unification  of 
Italy  in  1860  on  account  of  the  protests  of  Austria, 
and  the  consolidation  of  Germany  in  1866  and  1871 
because  of  the  opposition  of  some  of  her  minor 
states." 

At  any  rate,  it  may  be  presumed  that  the  Chino- 
Japanese  treaties  of  1915  cannot  be  allowed  to  be 
operative,  and  that  China,  failing  to  reach  an  amica- 
ble settlement  of  the  matter,  will  be  compelled  to 
take  step  to  repudiate  them  altogether.  We  have 
pointed  out  that  they  are  null  and  void  ab  initio 


OF  MAY  25,  1915  103 

because  of  the  lack  of  legislative  sanction,  which  is 
required  by  the  Constitution  of  the  Chinese  Republic 
to  every  international  agreement  it  enters  into.  The 
fact  that  these  treaties  have  never  been  submitted 
to  the  approval  of  the  Chinese  National  Assembly, 
and  that  they  have  been  submitted  to  any  other 
legislative  body  legally  constituted  in  China,  is  suf- 
ficient ground  for  China  to  repudiate  them  alto- 
gether. For  the  last  few  years,  China  has  been  torn 
by  internal  differences.  The  day  when  the  country 
is  united,  and  when  a  new  National  Assembly  is 
elected,  will  soon  arrive,  and  it  is  simply  a  matter  of 
procedure  that  they  are  declared  null  and  void  by 
legislative  action.  By  an  Act  of  Congress  of  July  7, 
1798,  it  was  declared,  "That  the  United  States  are 
of  right  free  and  exonerated  from  the  stipulations  of 
the  treaties  and  of  the  consular  convention,  hereto- 
fore concluded  between  the  United  States  and 
France."  Following  the  example  thus  set  by  the 
United  States,  China,  with  a  united  country  and  a 
representative  parliament,  can  refuse  to  recognise 
the  treaties  of  1915  as  binding  upon  her.  The  Chi- 
nese legislature  can  pass  a  resolution  to  this  effect, 
which  can  be  communicated  to  the  Japanese  Govern- 
ment as  a  notification  of  the  abrogation  of  the  trea- 
ties under  consideration.  China  need  have  no  fear 
that  she  would  be  considered  as  faithless  in  her  inter- 
national engagements  in  such  an  eventuality.  She 
will  have  done  her  best,  and  she  certainly  cannot  be 
expected  to  sacrifice  her  right  of  existence  as  an  in- 


104    THE  CHINO-JAPANESE  TREATIES 

dependent  and  sovereign  nation  for  the  interest  of 
her  neighbouring  empire.  The  world's  pubHc  opin- 
ion will  be  behind  China.  The  simple  fact  that 
China  took  the  trouble  of  submitting  the  case  to  the 
Peace  Conference  at  Versailles,  and  that  she  has  not 
seen  fit  to  repudiate  these  treaties  on  her  own  re- 
sponsibility, is  a  convincing  proof  that  she  cherishes 
great  regard  for  her  international  engagements. 
Only  as  the  last  resort  to  rectify  this  gross  injustice, 
China  may  be  driven  to  take  the  extreme  measure 
suggested  above. 

In  view  of  the  fact  that  the  Washington  confer- 
ence aims  to  reach  some  agreement  upon  limitation 
of  armament,  the  point  should  be  strongly  em- 
phasised that  no  such  agreement  can  be  arrived  at 
without  a  general  settlement  of  the  Far  Eastern 
questions.  And  the  Far  Eastern  questions  cannot 
be  settled  without  disposing  these  treaties  of  May 
25,  1915,  which  have  since  their  conclusion  stood  as 
a  stumbling-block  to  the  cordial  relations  between 
Japan  and  China.  While  it  is  quite  likely,  therefore, 
that  the  question  of  validity  of  these  treaties  may  be 
re-opened  at  the  Washington  conference,  the  re- 
opening is  in  itself  no  assurance  of  a  judicial  settle- 
ment. China  will  perhaps  welcome  the  opportunity 
of  reconsidering  the  question,  of  course.  She  will, 
however,  be  better  off  not  to  discuss  it,  if  such  dis- 
cussion can  only  result  in  a  repetition  of  the  out- 
rageous treatment  which  she  received  at  the  Ver- 
sailles Peace  Conference.    It  is  certainly  true  that, 


OF  MAY  25,  1915  105 

unlike  the  Peace  Conference  at  Versailles,  the  con- 
ference at  Washington  seeks  to  discuss  the  Far 
Eastern  problems  and  will  therefore  give  more  care- 
ful consideration  to  questions  of  Chinese  interest. 
It  is  also  true  that,  in  a  general  conference  of  Powers 
such  as  this,  no  matter  what  its  agenda  may  be,  the 
interests  of  the  participating  Powers  are  so  numer- 
ous and  various  that  those  of  the  weaker  are  often 
sacrificed  for  the  stronger  Powers.  There  are 
bound  to  be  compromises  and  concessions.  On  the 
question  of  the  1915  treaties  there  should  be  no  com- 
promise. China  expects  their  absolute  repudiation. 
Every  compromise  will  tend  to  recognise  their  va- 
lidity.   This  China  refuses  to  admit. 


APPENDIX  A 

TREATY  RESPECTING  THE   PROVINCE  OF   SHANTUNG 

His  Excellency  the  President  of  the  Republic  of 
China  and  His  Majesty  the  Emperor  of  Japan,  having 
resolved  to  conclude  a  Treaty  with  a  view  to  the 
maintenance  of  generd  peace  in  the  Extreme  East 
and  the  further  strengthening  of  the  relations  of 
friendship  and  good  neighbourhood  now  existing  be- 
tween the  two  nations,  have  for  that  purpose  named 
as  their  Plenipotentiaries,  that  is  to  say: 

His  Excellency  the  President  of  the  Republic  of 
China,  Lou  Tseng-tsiang,  Chung-ching,  First  Class 
Chia  Ho  Decoration,  Minister  of  Foreign  Affairs. 

And  His  Majesty  the  Emperor  of  Japan,  Hioki  Eki, 
Jushii,  Second  Class  of  the  Imperial  Order  of  the 
Sacred  Treasure,  Minister  Plenipoteniary,  and  Envoy 
Extraordinary : 

Who  after  having  communicated  to  each  other  their 
full  powers  and  found  them  to  be  in  good  and  due 
form,  have  agreed  upon  and  concluded  the  following 
Articles : 

Article  1.  The  Chinese  Government  agrees  to  give 
full  assent  to  all  matters  upon  which  the  Japanese 
Government  may  hereafter  agree  with  the  German 
Government  relating  to  the  disposition  of  all  rights, 
interests  and  concessions  which  Germany,  by  virtue 
of  treaties  or  otherwise,  possesses  in  relation  to  the 
Province  of  Shantung. 

106 


APPENDICES  107 

Article  2,  The  Chinese  Government  agrees  that  as 
regards  the  railway  to  be  built  by  China  herself  from 
Chefoo  or  Lungkow  to  connect  with  the  Kiaochow- 
Tsinanfu  railway,  if  Germany  abandons  the  privilege 
of  financing  the  Chefoo-Weihsien  line,  China  will  ap- 
proach Japanese  capitalists  to  negotiate  for  a  loan. 

Article  3.  The  Chinese  Government  agrees  in  the 
interest  of  trade  and  for  the  residence  of  foreigners, 
to  open  by  China  herself  as  soon  as  possible  certain 
suitable  places  in  the  Province  of  Shantung  as  Com- 
mercial Ports. 

Article  4.  The  present  treaty  shall  come  into  force 
on  the  day  of  its  signature. 

The  present  treaty  shall  be  ratified  by  His  Excel- 
lency the  President  of  the  Republic  of  China  and  His 
Majesty  the  Emperor  of  Japan,  and  the  ratification 
thereof  shall  be  exchanged  at  Tokio  as  soon  as  pos- 
sible. 

In  witness  whereof  the  respective  Plenipotentiaries 
of  the  High  Contracting  Parties  have  signed  and 
sealed  the  present  Treaty,  two  copies  in  the  Chinese 
language  and  two  in  Japanese. 

Done  at  Peking  this  twenty-fifth  day  of  the  fifth 
month  of  the  fourth  year  of  the  Republic  of  China, 
corresponding  to  the  same  day  of  the  same  month  of 
the  fourth  year  of  Taisho. 


APPENDIX  B 

EXCHANGE  OF    NOTES  RESPECTING   SHANTUNG 

—Note- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  the  Republic  of 
China. 
Monsieur  le  Ministre. 

In  the  name  of  the  Chinese  Government  I  have  the 
honour   to   make  the    following   declaration   to   your 
Government:  "Within  the  Province  of   Shantung  or 
along  its  coast  no  territory  or  island  will  be  leased  or 
ceded  to  any  foreign  Power  under  any  pretext." 
I  avail,  etc., 
(Signed)  Lou  Tseng-tsiang. 
His  Excellency, 
Hioki  Eki, 
Japanese  Minister. 

—Reply- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  Taisho. 
Excellency, 

I  have  the  honour  to  acknowledge  the  receipt  of 
Your  Excellency's  note  of  this  day's  date  in  which 
you  made  the  following  declaration  in  the  name  of 
the  Chinese  Government:  "Within  the  Province  of 
Shantung  or  along  its  coast  no  territory  or  island  will 

108 


APPENDICES  109 

be  leased  or  ceded  to  any  foreign  Power  under  any 
pretext." 

In  reply  I  beg  to  state  that  I  have  taken  note  of 
this  declaration. 

I  avail,  etc., 

(Signed)  Higki  Eki. 
His  Excellency, 
Lou  Tseng-tsiang, 

Minister  of  Foreign  Affairs. 


APPENDIX  C 

EXCHANGE   OF    NOTES    RESPECTING   THE    OPENING   OF 
PORTS    IN    SHANTUNG 

—Note- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  the  Republic  of 
China. 
Monsieur  le  Ministre. 

I  have  the  honour  to  state  that  the  places  which 
ought  to  be  opened  as  Commercial  Ports  by  China 
herself,  as  provided  in  Article  3  of  the  Treaty  re- 
specting the  Province  of  Shantung  signed  this  day, 
will  be  selected  and  the  regulations  therefor,  will  be 
drawn  up,  by  the  Chinese  Government  itself,  a  deci- 
sion concerning  which  will  be  made  after  consulting 
the  Minister  of  Japan. 

I  avail,  etc., 
(Signed)  Lou  Tseng-tsiang. 
His  Excellency, 
Hioki  Eki, 
Japanese  Minister. 

—Reply- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  Taisho. 
Excellency, 

I  have  the  honour  to  acknowledge  the  receipt  of 
Your  Excellency's  note  of  this  day's  date  in  which 

110 


APPENDICES  111 

you  stated  "that  the  places  which  ought  to  be  opened 
as  Commercial  Ports  by  China  herself,  as  provided  in 
Article  3  of  the  Treaty  respecting  the  province  of 
Shantung  signed  this  day,  will  be  selected  and  the 
regulations  therefor,  will  be  drawn  up  by  the  Chinese 
Government  itself,  a  decision  concerning  which  will 
be  made  after  consulting  the  Minister  of  Japan." 

In  reply,  I  beg  to  state  that  I  have  taken  note  of 
the  same. 

I  avail,  etc., 

(Signed)  Higki  Eki. 
His  Excellency, 
Lou  Tseng-tsiang, 

Minister  of  Foreign  Affairs. 


APPENDIX  D 

EXCHANGE  OF  NOTES  RESPECTING  THE  RESTORATION  OF 
OF  THE  LEASED  TERRITORY  OF   KIAOCHOW  BAY 

—Note- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  Taisho. 
Excellency, 

In  the  name  of  my  Government  I  have  the  honour 
to  make  the  following  declaration  to  the  Chinese  Gov- 
ernment : 

When,  after  the  termination  of  the  present  war,  the 
leased  territory  of  Kiaochow  Bay  is  completely  left 
to  the  free  disposal  of  Japan,  the  Japanese  Govern- 
ment will  restore  the  said  leased  territory  to  China 
under  the  following  conditions : 

1.  The  whole  of  Kiaochow  Bay  to  be  opened  as  a 
Commercial  Port. 

2.  A  concession  under  the  exclusive  jurisdiction  of 
Japan  to  be  established  at  a  place  designated  by  the 
Japanese  Government. 

3.  If  the  foreign  Powers  desire  it,  an  international 
concession  may  be  established. 

4.  As  regards  the  disposal  to  be  made  of  the  build- 
ings and  properties  of  Germany  and  the  conditions 
and  procedure  relating  thereto,  the  Japanese  Govern- 
ment and  the  Chinese  Government  shall  arrange  the 

112 


APPENDICES  113 

matter  by  mutual  agreement  before  the  restoration. 
I  avail,  etc., 

(Signed)  Higki  Eki. 
His  Excellency, 
Lou  Tseng-tsiang, 

Minister  of  Foreign  Affairs. 

— .Reply- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  the  Republic  of 
China. 
Monsieur  le  Ministre. 

I  have  the  honour  to  acknowledge  the  receipt  of 
your  Excellency's  note  of  this  day's  date  in  which  you 
made  the  following  declaration  in  the  name  of  your 
Government : 

"When,  after  the  termination  of  the  present  war 
the  leased  territory  of  Kiaochow  Bay  is  completely 
teft  to  the  free  disposal  of  Japan,  the  Japanese  Gov- 
ernment will  restore  the  said  leased  territory  to  China 
under  the  following  conditions: 

1.  The  whole  of  Kiaochow  Bay  to  be  opened  as  a 
Commercial  Port. 

2.  A  concession  under  the  exclusive  jurisdiction  of 
Japan  to  be  established  at  a  place  designated  by  the 
Japanese  Government. 

3.  If  the  foreign  Powers  desire  it,  an  international 
concession  may  be  established. 

4.  As  regards  the  disposal  to  be  made  of  the  build- 
ings and  properties  of  Germany  and  the  conditions 
and  procedure  relating  thereto,  the  Japanese  Govern- 
ment and  the  Chinese  Government  shall  arrange  the 
matter  by  mutual  agreement  before  the  restoration. 


114  APPENDICES 

In  reply,  I  beg  to  state  that  I  have  taken  note  of 
this  declaration. 

I  avail,  etc., 
(Signed)  Lou  Tseng-tsiang. 
His  Excellency, 
Hioki  Eki, 
Japanese  Minister. 


APPENDIX  E 

TREATY  RESPECTING   SOUTH    MANCHURIA  AND  EASTERN 
INNER   MONGOLIA 

His  Excellency  the  President  of  the  Republic  of 
China  and  His  Majesty  the  Emperor  of  Japan,  having 
resolved  to  conclude  a  Treaty  with  a  view  to  develop- 
ing their  economic  relations  in  South  Manchuria  and 
Eastern  Inner  Mongolia,  have  for  that  purpose  named 
as  their  Plenipotentiaries,  that  is  to  say: 

His  Excellency  the  President  of  the  Republic  of 
China,  Lou  Tseng-tsiang,  Chung-ching,  First  Class 
Chia-ho  Decoration,  and  Minister  of  Foreign  Affairs ; 
and  His  Majesty  the  Emperor  of  Japan,  Hioki  Eki, 
Jushii,  Second  Class  of  the  Imperial  Order  of  the 
Sacred  Treasure,  Minister  Plenipotentiary  and  Envoy 
Extraordinary ; 

Who,  after  having  communicated  to  each  other  their 
full'  powers,  and  found  them  to  be  in  good  and  due 
form,  have  agreed  upon  and  concluded  the  following 
Articles : 

Article  1.  The  two  High  Contracting  Parties  agree 
that  the  term  of  lease  of  Port  Arthur  and  Dalny  and 
the  terms  of  the  South  Manchuria  Railway  and  the 
Antung-Mukden  Railway,  shall  be  extended  to  99 
years. 

Article  2.  Japanese  subjects  in  South  Manchuria 
may,  by  negotiation,  lease  land  necessary  for  erecting 
suitable  buildings  for  trade  and  manufacture  or  for 
prosecuting  agricultural  enterprises. 

115 


116  APPENDICES 

Article  3.  Japanese  subjects  shall  be  free  to  reside 
and  travel  in  South  Manchuria  and  to  engage  in  busi- 
ness and  manufacture  of  any  kind  whatsoever. 

Article  4.  In  the  event  of  Japanese  and  Chinese 
desiring  jointly  to  undertake  agricultural  enterprises 
and  industries  incidental  thereto,  the  Chinese  Govern- 
ment may  give  its  permission. 

Article  5.  The  Japanese  subjects  referred  to  in  the 
preceding  three  articles,  besides  being  required  to 
register  with  the  local  Authorities  passports  which 
they  must  procure  under  the  existing  regulations,  shall 
also  submit  to  the  police  laws  and  ordinances  and 
taxation  of  China. 

Civil  and  criminal  cases  in  which  the  defendants  are 
Japanese  shall  be  tried  and  adjudicated  by  the  Japa- 
nese Consul:  those  in  which  the  defendants  are  Chi- 
nese shall  be  tried  and  adjudicated  by  Chinese  Au- 
thorities. In  either  case  an  officer  may  be  deputed 
to  the  court  to  attend  the  proceedings.  But  mixed 
civil  cases  between  Chinese  and  Japanese  relating  to 
land  shall  be  tried  and  adjudicated  by  delegates  of 
both  nations  conjointly  in  accordance  with  Chinese 
law  and  local  usage. 

When  in  future,  the  judicial'  system  in  the  said  re- 
gion is  completely  reformed,  all  civil  and  criminal 
cases  concerning  Japanese  subjects  shall  be  tried  and 
adjudicated  entirely  by  Chinese  law  courts. 

Article  6.  The  Chinese  Government  agrees,  in  the 
interest  of  trade  and  for  the  residence  of  foreigners, 
to  open  by  China  herself,  as  soon  as  possible,  certain 
suitable  places  in  Eastern  Inner  Mongolia  as  Com- 
mercial Ports. 

Article  7,    The  Chinese  Government  agrees  speedily 


APPENDICES  117 

to  make  a  fundamental  revision  of  the  Kirin-Chang- 
chun  Railway  Loan  Agreement,  taking  as  a  standard 
the  provisions  in  railway  loan  agreements  made  here- 
tofore between  China  and  foreign  financiers. 

When  in  future,  more  advantageous  terms  than 
those  in  existing  railway  loan  agreements  are  granted 
to  foreign  financiers  in  connection  with  railway  loans, 
the  above  agreement  shall  again  be  revised  in  accord- 
ance with  Japan's  wishes. 

Article  8.  All  existing  treaties  between  China  and 
Japan  relating  to  Manchuria  shall,  except  where  other- 
wise provided  for  by  this  Treaty,  remain  in  force. 

Article  9.  The  present  Treaty  shall  come  into  force 
on  the  date  of  its  signature.  The  present  Treaty  shall 
be  ratified  by  His  Excellency  the  President  of  the  Re- 
public of  China  and  His  Majesty  the  Emperor  of 
Japan,  and  the  ratifications  thereof  shall  be  exchanged 
at  Tokio  as  soon  as  possible. 

In  witness  whereof  the  respective  Plenipotentiaries 
of  the  two  High  Contracting  Parties  have  signed  and 
sealed  the  present  Treaty,  two  copies  in  the  Chinese 
language  and  two  in  Japanese. 

Done  at  Peking  this  twenty-fifth  day  of  the  fifth 
month  of  the  fourth  year  of  the  Republic  of  China, 
corresponding  to  the  same  day  of  the  same  month  of 
the  fourth  year  of  Taisho. 


APPENDIX  F 

EXCHANGE   OF   NOTES 

RESPECTING  THE  TERMS  OF  LEASE  OF  PORT  ARTHUR  AND 

DALNY  AND  THE  TERMS  OF  SOUTH   MANCHURIAN 

AND  ANTUNG-MUKDEN   RAILWAYS 

Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  the  Republic  of 
China. 
Monsieur  le  Ministre. 

I  have  the  honour  to  state  that,  respecting  the  pro- 
visions contained  in  Article  1  of  the  Treaty  relating 
to    South   Manchuria   and   Eastern    Inner   Mongolia, 
signed  this  day,  the  term  of  lease  of  Port  Arthur  and 
Dalny  shall  expire  in  the  86th  year  of  the  Republic 
or   1997.     The  date   for  restoring  the   South   Man- 
churia Railway  to  China  shall  fall  due  in  the  91st  year 
of  the  Republic  or  2002.     Article  12  in  the  original 
South  Manchurian  Railway  Agreement  providing  that 
it  may  be  redeemed  by  China  after  36  years  from  the 
day  on  which  the  traffic  is  opened  is  hereby  cancelled. 
The  term  of  the  Antung-Mukden  RailSvay  shall  ex- 
pire in  the  96th  year  of  the  Republic  or  2007. 
I  avail,  etc., 
(Signed)  Lou  Tseng-tsiang. 
His  Excellency, 
Hioki  Eki, 
Japanese  Minister. 

118 


APPENDICES  119 

—Reply- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  Taisho. 
Excellency, 

I  have  the  honour  to  acknowledge  the  receipt  of 
Your  Excellency's  note  of  this  day's  date,  in  which 
you  stated  that  respecting  the  provisions  contained  in 
Article  1  of  the  Treaty  relating  to  South  Manchuria 
and  Eastern  Inner  Mongolia,  signed  this  day,  the 
term  of  lease  of  Port  Arthur  and  Dalny  shall'  expire 
in  the  86th  year  of  the  Republic  or  1997.  The  date 
for  restoring  the  South  Manchurian  Railway  to  China 
shall  fall  due  in  the  91st  year  of  the  Republic  or 
2002.  Article  12  in  the  original  South  Manchurian 
Railway  Agreement  providing  that  it  may  be  redeemed 
by  China  after  36  years  from  the  day  on  which  the 
traffic  is  opened,  is  hereby  cancelled.  The  term  of 
the  Antung-Mukden  Railway  shall  expire  in  the  96th 
year  of  the  Republic  or  2007." 

In  reply  I  beg  to  state  that  I  have  taken  note  of  the 
same. 

I  avail,  etc., 

(Signed)  Hioki  Eki. 
His  Excellency, 
Lou  Tseng-tsiang, 

Minister  of  Foreign  Affairs. 


APPENDIX  G 

EXCHANGE  OF   NOTES   RESPECTING  THE  OPENING  OF 
PORTS   IN   EASTERN   INNER    MONGOLIA 

—Note- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  the  Republic  of 
Qiina. 
Monsieur  le  Ministre. 

I  have  the  honour  to  state  that  the  places  which 
ought  to  be  opened  as  Commercial  Ports  by  China 
herself,  as  provided  in  Article  6  of  the  Treaty  re- 
specting South  Manchuria  and  Eastern  Inner  Mon- 
golia signed  this  day,  will  be  selected,  and  the  regu- 
lations therefor,  will'  be  drawn  up,  by  the   Chinese 
Government  itself,  a  decision  concerning  which  will 
be  made  after  consulting  the  Minister  of  Japan. 
I  avail,  etc., 
(Signed)  Lou  Tseng-tsiang. 
His  Excellency, 
Hioki  Eld, 
Japanese  Minister. 

—Reply- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  Taisho. 
Excellency, 

I  have  the  honour  to  acknowledge  the  receipt  of 
Your  Excellency's  note  of  this  day's  date  in  which 

120 


APPENDICES  121 

you  stated  "that  the  places  which  ought  to  be  opened 
as  Commercial  Ports  by  China  herself,  as  provided  in 
Article  6  of  the  Treaty  respecting  South  Manchuria 
and  Eastern  Inner  Mongolia  signed  this  day,  will  be 
selected,  and  the  regulations  therefor,  will  be  drawn 
up,  by  the  Chinese  Government  itself,  a  decision  con- 
cerning which  will  be  made  after  consulting  the  Min- 
ister of  Japan." 

In  reply,  I  beg  to  state  that  I  have  taken  note  of  the 
same. 

I  avail,  etc., 

(Signed)  Hioki  Eki. 
His  Excellency, 

Lou  Tseng-tsiang, 
Minister  of  Foreign  Affairs. 


SOUTH    MANCHURIA 

—Note- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  the  Republic  of 
China. 
Monsieur  le  Ministre. 

I  have  the  honour  to  state  that  Japanese  subjects 
shall,  as  soon  as  possible,  investigate  and  select  mines 
in  the  mining  areas  in  South  Manchuria  specified 
hereinunder,  except  those  being  prospected  for  or 
worked,  and  the  Chinese  Government  will  then  permit 
them  to  prospect  or  work  the  same;  but  before  the 
Mining  regulations  are  definitely  settled,  the  practice 
at  present  in  force  shall  be  followed.  Provinces 
Fengtien: 


122                       APPENDICES 

Locality 

District 

Mineral 

Niu  Hsin  T'ai 

Pen-hsi 

Coal 

Tien  Shih  Fu  Kou 

(( 

(( 

Sha  Sung  Kang 

Hai-lung 

t( 

T'ieh  Ch'ang 

Tung-hua 

t( 

Nuan  Ti  T'ang 

Chin 

« 

An  Shan  Chan  region 

From  Liaoyang 

to  Pen-hsi 

Iron 

KiRiN  {Sou 

them  Portion) 

Sha  Sung  Kang 

Ho-lung 

C.&I. 

Kang  Yao 

Chi-lin  (Kirin) 

Coal 

Chia  P'i  Kou 

Hua-tien 

Gold 

I  avail,  etc., 

(Signed)  Lou  Tseng- 

-TSIANG. 

His  Excellency, 

Hioki  Eki, 

Japanese  Minister. 

■ 

—Reply- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  Taisho. 
Excellency, 

I  have  the  -honour  to  acknowledge  the  receipt  of 
Your  Excellency's  note  of  this  day  respecting  the 
opening  of  mines  in  South  Manchuria,  stating  "J^P^" 
nese  subjects  shall,  as  soon  as  possible,  investigate  and 
select  mines  in  the  mining  areas  in  South  Manchuria 
specified  hereinunder,  except  those  being  prospected 
for  or  worked,  and  the  Chinese  Government  will  then 
permit  them  to  prospect  and  or  work  the  same;  but 
before  the  Mining  regulations  are  definitely  settled, 
the  practice  at  present  in  force  shall  be  followed. 


APPENDICES 


123 


1  Provinces  Fengtien. 

Locality 

District 

Mineral 

1.  Niu  Hsin  T'ai 

Pen-hsi 

Coal 

2.  Tien  Shih  Fu  Kou 

(( 

« 

3.  Sha  Sung  Kang 

Hai-Iung 

« 

4.  T'ieh  Ch'ang 

Tung-hua 

tt 

5.  Nuan  Ti  T'ang 

Chin 

tt 

6.  An  Shan  Chan  region 

From  Liaoyang 

to  Pen-hsi 

Iron 

KIRIN  (Southern  Portion) 

1.  Sha  Sung  Kang  Ho-lung  C.  &I. 

2.  Kang  Yao  Chi-lin  (Kirin)  Coal 

3.  Chia  P'i  Kou  Hua-tien  Gold 

I  avail,  etc., 

(Signed)  Hioki  Eki. 
His  Excellency, 
Lou  Tseng-tsiang, 

Minister  of  Foreign  Affairs  of  the  Republic  of 
China. 


APPENDIX  H 

EXCHANGE  OF  NOTES  RESPECTING  RAILWAYS  AND  TAXES 

IN  SOUTH  MANCHURIA  AND  EASTERN  INNER 

MONGOLIA 

—Note- 
Peking,  the  25th  day  of  the  5  th  month 
of  the  4th  year  of  the  Republic  of 
China. 
Monsieur  le  Ministre. 

In  the  name  of  my  Government. 
I  have  the  honour  to  make  the  following  declara- 
tion to  your  Government: 

China   will   hereafter   provide   funds   for   building 
necessary  railways  in  South  Manchuria  and  Eastern 
Inner  Mongolia;  if  foreign  capital  is  required  China 
may  negotiate   for  a  loan   with  Japanese  capitalists 
first;   and    further,   the    Chinese   Government,    when 
making  a  loan  in  future  on  the  security  of  the  taxes 
in  the  above-mentioned  places  (excluding  the  salt  and 
customs  revenue  which  have  already  been  pledged  by 
the  Chinese  Central  Government)  may  negotiate  for 
it  with  Japanese  capitalists  first. 
I  avail,  etc., 
(Signed)  Lou  Tseng-tsiang. 
His  Excellency, 
Hioki  Eki, 
Japanese  Minister. 

124 


APPENDICES  125 

—Reply- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  Taisho. 
Excellency, 

I  have  the  honour  to  acknowledge  the  receipt  of 
Your  Excellency's  note  of  this  day's  date  respecting 
railways  and  taxes  in  South  Manchuria  and  Eastern 
Inner  Mongolia  in  which  you  stated: 

"China  will  hereafter  provide  funds  for  building 
necessary  railways  in  South  Manchuria  and  Eastern 
Inner  Mongolia;  if  foreign  capital  is  required  China 
may  negotiate  for  a  loan  with  Japanese  capitalists 
first;  and  further,  the  Chinese  Government,  when 
making  a  loan  in  future  on  the  security  of  taxes  in 
the  above  mentioned  places  (excluding  the  salt  and 
customs  revenue  which  has  already  been  pledged  by 
the  Chinese  Central  Government)  may  negotiate  for 
it  with  Japanese  capitalists  first. 

In  reply  I  beg  to  state  that  I  have  taken  note  of 
the  same. 

I  avail,  etc., 

(Signed)  Hioki  Eki. 
His  Excellency, 
Lou  Tseng-tsiang, 

Minister  of  Foreign  Affairs. 


APPENDIX  I 

EXCHANGE  OF  NOTES  RESPECTING  THE  EMPLOYMENT  OF 
ADVISERS  IN   SOUTH   MANCHURIA 

—Note- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of   the  RepubHc  of 
China. 
Monsieur  le  Ministre. 

In  the  name  of  the  Chinese  Government,  I  have  the 
honour  to  make  the  following  declaration  to  your  Gov- 
ernment : 

"Hereafter,  if  foreign  advisers  or  instructors  on 
political,  financial,  military  or  police  matters  are  to  be 
employed  in  South  Manchuria,  Japanese  may  be  em- 
ployed first." 

I  avail,  etc., 
(Signed)  Lou  Tseng-tsiang. 
His  Excellency, 
Hioki  Eki, 
Japanese  Minister. 

—Reply- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  Taisho. 
Excellency, 

I  have  the  honour  to  acknowledge  the  receipt  of 
Your  Excellency's  note  of  this  day's  date  in  which 

126 


APPENDICES  127 

you  made  the  following  declaration  in  the  name  of 
your  Government: 

"Hereafter  if  foreign  advisers  or  instructors  in  po- 
litical, financial,  military  or  police  matters  are  to  be 
employed  in  South  Manchuria,  Japanese  may  be  em- 
ployed first." 

In  reply,  I  beg  to  state  that  I  have  taken  note  of 
the  same. 

I  avail,  etc., 

(Signed)  Hioki  Eki. 
His  Excellency, 
Lou  Tseng-tsiang, 

Minister  of  Foreign  Affairs. 


APPENDIX  J 

EXCHANGE  OF  NOTES  RESPECTING  THE  EXPLANATION  OF 
"lease  by  negotiation"  in  south    MANCHURIA 

—Note- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  Taisho. 
Excellency, 

I  have  the  honour  to  state  that  the  term  lease  by 
negotiation  contained  in  Article  2  of  the  Treaty  re- 
specting South  Manchuria  and  Eastern  Inner  Mon- 
golia signed  this  day  shall  be  understood  to  imply  a 
long-term  lease  of  not  more  than  thirty  years  and  also 
the  possibility  of  its  unconditional  renewal, 
I  avail,  etc., 

(Signed)  Hioki  Eki. 
His  Excellency, 
Lou  Tseng-tsiang, 

Minister  of  Foreign  Affairs. 

• 

—Reply- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  the  Republic  of 
China. 
Monsieur  le  Ministre. 

I  have  the  honour  to  acknowledge  the  receipt  of 
Your  Excellency's  note  of  this  day's  date  in  which 
you  state: 

"The  term  lease  by  negotiation  contaianed  in  Arti- 
128 


APPENDICES  129 

cle  2  of  the  Treaty  respecting  South  Manchuria  and 
Eastern  Inner  Mongolia  signed  this  day  shall  be  un- 
derstood to  imply  a  long-term  lease  of  not  more  than 
thirty  years  and  also  the  possibility  of  its  uncondi- 
tional renewal." 

In  reply  I  beg  to  state  that  I  have  taken  note  of 
the  same. 

I  avail,  etc., 
(Signed)  Lou  Tseng-tsiang. 
His  Excellency, 
Hioki  Eki, 
Japanese  Minister. 


APPENDIX  K 

EXCHANGE  OF  NOTES  RESPECTING  THE  ARRANGEMENT 
FOR  POLICE  LAWS  AND  ORDINANCES  AND  TAXATION 
IN  SOUTH  MANCHURIA  AND  EASTERN  INNER  MON- 
GOLIA 

—Note- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of   the  RepubHc  of 
China. 
Monsieur  le  Ministre. 

I  have  the  honour  to  state  that  the  Chinese  Au- 
thorities will  notify  the  Japanese  Consul  of  the  po- 
lice laws  and  ordinances  and  the  taxation  to  which 
Japanese  subjects  shall  submit  according  to  Article  5 
of  the  Treaty  respecting  South  Manchuria  and  East- 
em  Inner  Mongolia  signed  this  day  so  as  to  come  to 
an  understanding  with  him  before  their  enforcement. 
I  avail,  etc., 
(Signed)  Lou  Tseng-tsiang. 
His  Excellency, 
Hioki  Eld, 
Japanese  Minister. 

—Reply- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  Taisho. 
Excellency, 
I  have  the  honour  to  acknowledge  the  receipt  of 
130 


APPENDICES  131 

Your  Excelleny's  note  of   this  day's  date  in  which 
you  state: 

"The  Chinese  Authorities  will  notify  the  Japanese 
Consul  of  the  police  laws  and  ordinances  and  the  taxa- 
tion to  which  Japanese  subjects  shall  submit  accord- 
ing to  Article  5  of  the  Treaty  respecting  South  Man- 
churia and  Eastern  Inner  Mongolia  signed  this  day 
so  as  to  come  to  an  understanding  with  him  before 
their  enforcement." 

In  reply,  I  beg  to  state  that  I  have  taken  note  of 
the  same. 

I  avail,  etc., 

(Signed)  Hioki  Eki. 
His  Excellency, 

Lou  Tseng-tsiang, 

Minister  of  Foreign  Affairs. 

•i-xNote— 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  the  Republic  of 
China. 
Monsieur  le  Ministre. 

I  have  the  honour  to  state  that,  inasmuch  as  prepa- 
rations have  to  be  made  regarding  Articles  2,  3,  4 
&  5  of  the  Treaty  respecting  South  Manchuria  and 
Eastern  Inner  Mongolia  signed  this  day,  the  Chinese 
Government  proposes  that  the  operation  of  the  said 
Articles  be  postponed  for  a  period  of  three  months 
beginning  from  the  date  of  the  signing  of  the  said 
Treaty. 


132  APPENDICES 

I  hope  your  Government  will  agree  to  this  proposal. 
I  avail,  etc., 
(Signed)  Lou  Tseng-Tsiang. 
His  Excellency, 
Hioki  Eki, 
Japanese  Minister. 

—Reply- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  Taisho. 
Excellency, 

I  have  the  honour  to  acknowledge  the  receipt  of 
Your  Excellency's  note  of  this  day's  date  in  which 
you  stated  that  "inasmuch  as  preparations  have  to  be 
made  regarding  Articles  2,  3,  4  &  5  the  Treaty  re- 
specting South  Manchuria  and  Eastern  Inner  Mon- 
golia signed  this  day,  the  Chinese  Government  pro- 
poses that  the  operation  of  the  said  Articles  be  post- 
poned for  a  period  of  three  months  beginning  from 
the  date  of  the  signing  of  the  said  Treaty." 

In  reply,  I  beg  to  state  that  I  have  taken  note  of 
the  same. 

I  avail,  etc., 

(Signed)  Hioki  Eki. 
His  Excellency, 
Lou  Tseng-tsiang, 

Minister  of  Foreign  Affairs. 


APPENDIX  L 

EXCHANGE  OF  NOTES  RESPECTING  THE   MATTER 
OF   HANYEHPING 

—Note- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  the  Republic  of 
China. 
Monsieur  le  Ministre. 

I  have  the  honour  to  state  that  if  in  future  the 
Hanyehping   Company   and   the   Japanese   capitalists 
agree  upon  co-operation,  the  Chinese  Government,  in 
view  of  the  intimate  relations  subsisting  between  the 
Japanese  capitalists  and  the  said  Company,  will  forth- 
with give  its  permission.     The  Chinese  Government 
further  agrees  not  to  confiscate  the  said   Company, 
nor,  without  the  consent  of  the  Japanese  capitalists 
to  convert  it  into  a  state  enterprise,  nor  cause  it  to 
borrow  and  use  foreign  capital  other  than  Japanese. 
I  avail,  etc., 
(Signed)  Lou  Tseng-Tsiang. 
His  Excellency, 
Hioki  Eki, 
Japanese  Minister. 

—Reply- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  Taisho. 
Excellency, 
I  have  the  honour  to  acknowledge  the  receipt  of 
133 


134  APPENDICES 

Your  Excellency's  note  of  this  day's  date  in  which 
you  state: 

"If  in  future  the  Hanyehping  Company  and  the 
Japanese  capitalists  agree  upon  co-operation,  the  Chi- 
nese Government,  in  view  of  the  intimate  relations 
subsisting  between  the  Japanese  capitalists  and  the 
said  Company,  will  forthwith  give  its  permission. 
The  Chinese  Government  further  agrees  not  to  con- 
fiscate the  said  Company,  nor,  without  the  consent  of 
the  Japanese  capitalists  to  convert  it  into  a  state  enter- 
prise, nor  cause  it  to  borrow  and  use  foreign  capital 
other  than  Japanese." 

In  reply,  I  beg  to  state  that  I  have  taken  note  of 
the  same. 

I  avail,  etc., 

(Signed)  Hioki  Eki. 
His  Excellency, 

Lou  Tseng-tsiang, 

Minister  of  Foreign  Affairs. 


APPENDIX  M 

EXCHANGE  OF  NOTES  RESPECTING  THE  FUKIEN 
QUESTION 

—Note- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  the  Republic  of 
China. 
Excellency, 

A  report  has  reached  me  to  the  effect  that  the  Qii- 
nese  Government  has  the  intention  of  permitting  for- 
eign nations  to  establish,  on  the  coast  of  Fukien 
Province,  dock-yards,  coaling  stations  for  military 
use,  naval  bases,  or  to  set  up  other  military  establish- 
ments; and  also  of  borrowing  foreign  capital  for  the 
purpose  of  setting  up  the  above-mentioned  establish- 
ments. 

I  have  the  honour  to  request  that  Your  Excellency 
will  be  good  enough  to  give  me  reply  stating  whether 
or  not  the  Chinese  Government  really  entertains  such 
an  intention. 

I  avail,  etc., 

(Signed)  Hioki  Eki. 
His  Excellency, 
Lou  Tseng-tsiang, 

Minister  of  Foreign  Affairs. 
155 


136  APPENDICES 

—Reply- 
Peking,  the  25th  day  of  the  5th  month 
of  the  4th  year  of  the  Republic  of 
China. 
Monsieur  le  Ministre. 

I  have  the  honour  to  acknowledge  the  receipt  of 
Your  Excellency's  note  of  this  day's  date  which  I 
have  noted. 

In  reply  I  beg  to  inform  you  that  the  Chinese  Gk>v- 
ernment  hereby  declares  that  it  has  given  no  permis- 
sion to  foreign  nations  to  construct,  on  the  coast  of 
Fukien  Province,  dock-yards,  coaling  stations  for  mili- 
tary use,   naval   bases,   or  to   set  up  other  military 
establishments;  nor  does  it  entertain  an  intention  of 
borrowing  foreign  capital  for  the  purpose  of  setting 
up  the  above-mentioned  establishments. 
I  avail,  etc., 
(Signed)  Lou  Tseng-tsiang. 
His  Excellency, 
Hioki  Eki, 
Japanese  Minister. 


APPENDIX  N 

THE  CLAIM  OF  CHINA 

SUBMITTING  FOR  ABROGATION  BY  THE  PEACE  CONFER- 
ENCE THE  TREATIES  AND  NOTES  MADE  AND  EX- 
CHANGED BY  AND  BETWEEN  CHINA  AND  JAPAN  ON 
MAY  25,  1915,  AS  A  TRANSACTION  ARISING  OUT  OF 
AND  CONNECTED  WITH  THE  WAR  BETWEEN  THE 
ALLIED  AND  ASSOCIATED  STATES  AND  THE  CENTRAL 
POWERS 

It  is  submitted  that  the  Treaties  and  Notes  signed 
and  exchanged  by  and  between  the  Qiinese  and  Japa- 
nese Governments  on  May  25,  1915,  as  a  result  of  the 
negotiations  connected  with  the  Twenty-one  Demands 
and  of  the  Japanese  uhimatum  of  May  7,  1915,  are 
and  do  constitute  one  entire  transaction  or  settlement 
arising  out  of  and  connected  with  the  war  between 
the  Allied  and  Associated  States  and  the  Central 
Powers. 

An  essential  feature  of  this  transaction  is  the  set 
of  demands  relating  to  the  province  of  Shantung  and 
insisting  on  the  right  of  Japan  to  succeed  to  the  leased 
territory  of  Kiaochow  and  the  other  "rights,  interests 
and  concessions"  of   Germany  in  the  province. 

That  this  essential  feature  of  the  transaction  can 
only  be  settled  by  the  Peace  Conference  is  clearly  ad- 
mitted by   the  Japanese   Government,   because  they 

137 


138  APPENDICES 

have  submitted  to  the  Conference  a  claim  for  "the  un- 
conditional cession  of  the  leased  territory  of  Kiao- 
chow  together  with  the  railSvays  and  other  rights  pos- 
sessed by  Germany  in  respect  of  Shantung  province." 
It  follows,  therefore,  the  entire  transaction  or  set- 
tlement of  which  this  Shantung  claim  of  Japan  forms 
an  essential  feature,  is  a  matter  directly  arising 

OUT  OF  THE  war  AND  WITHIN  THE  PURVIEW  OF  THE 
PEACE  CONFERENCE  AND  NECESSARILY  SUBJECT  TO  ITS 
REVISIONARY  ACTION. 

WAR-CHARACTER  OF  TREATIES  OF   1915  EMPHASISED 

The  war-character  of  these  Treaties  of  1915  is  fur- 
ther attested  by  the  opening  sentence  of  the  "First 
Instructions"  to  Mr.  Hioki,  which  reads:  "In  order 
to  provide  for  the  readjustment  of  affairs  consequent 
on  the  Japan-German  war  and  for  the  purpose  of 
ensuring  a  lasting  peace  in  the  Far  East  by  strength- 
ening the  position  of  the  [Japanese]  Empire,  the  Im- 
perial Government  have  resolved  to  approach  the  Chi- 
nise  Government  with  a  view  to  conclude  treaties 
and  agreements  mainly  along  the  lines  laid  down  in 
the  first  four  Groups  of  the  appended  proposals." 

The  Japanese  ultimatum  also  begins  with  a  sen- 
tence, emphasising  that  the  demarche  is  due  to  the 
desire  of  Japan  "to  adjust  matters  to  meet  the  new 
situation  created  by  the  war  between  Japan  and  Grer- 
many.  .  .  ." 


APPENDICES  139 

TREATIES  OF   1915   SIGNED   UNDER  COERCION 

The  fact  that  these  Treaties  of  1915  were  signed 
by  the  Chinese  Government  of  the  day  does  not  re- 
move them  from  the  scope  of  the  revisionary  authority 
of  the  Peace  Conference.  Nor  can  the  same  operate 
as  an  estoppel  against  China  in  her  claim  to  be  re- 
leased from  them.  These  Treaties  were  signed  by 
the  Chinese  Government  under  coercion  of  the  Japa- 
nese ultimatum  of  May  7,  1915,  and  in  circimistances 
entirely  excluding  any  suggestion  that  China  was  a 
free  and  consenting  party  to  the  transaction  embodied 
in  them. 


ABROGATION   INVOLVES    NO   JUSTICE  OF  UNFAIRNESS 
TO   JAPAN 

The  abrogation  of  the  Treaties  of  1915  necessarily 
carries  with  it  the  rejection  of  the  pending  Japanese 
claim  for  the  unconditional  cession  of  the  German 
system  in  Shantung. 

On  this  point,  the  submission  is  made  that  no  in- 
justice or  unfairness  will  be  done  to  Japan  in  denying 
her  claim  to  perpetuate  German  aggression  in  Shan- 
tung. Nor  will  Japan's  failure  in  this  respect  place 
her  in  a  position  inferior  to  that  of  any  of  the  other 
Powers  in  "territorial  propinquity"  to  China,  even  as- 
suming— which  China  does  not  admit — that  Japan's 
"territorial  propinquity"  entitles  her  to  claim  a  "spe- 
cial position"  in  China  which  has  never  been  claimed 
by  Great  Britain  and  France  although  their  respective 
Asiatic  possessions  are  also  "contiguous"  to  the  ter- 
ritory of  the  Chinese  Republic. 


140  APPENDICES 

HOW    CHINA   WAS    PREVENTED  FROM    INTERVENING 
IN    THE   WAR 

It  is  also  submitted  that  but  for  the  attitude  of 
Japan — inspired  largely,  it  seems,  by  her  desire  to 
replace  Germany  in  Shantung — China  would  have 
been  associated  with  the  Allies  in  August,  1914,  and 
again  in  November,  1915,  in  the  struggle  against  the 
Central  Powers. 

In  August,  1914,  the  Chinese  Government  expressed 
their  desire  to  declare  war  against  Germany  and  to 
take  part  in  the  Anglo-Japanese  operations  against  the 
German  garrison  at  Tsingtao.  The  proposal  was  not 
pressed  owing  to  the  intimation  reaching  the  Chinese 
Government  that  the  proposed  Chinese  participation 
was  likely  to  create  "complications'*  with  a  certain 
Power. 

Again  in  November,  1915,  the  Chinese  Government 
expressed  their  desire  to  enter  the  war  in  association 
with  the  Allies  but  the  Japanese  Government  opposed 
the  proposal. 

Eventually,  however,  the  Chinese  Government  ad- 
dressed a  note  of  warning  to  Germany  on  February 
9,  1917,  severed  diplomatic  relations  with  the  latter 
on  March  14  following,  and  finally  declared  war 
against  Germany  and  Austria  on  August  14,  1917 — 
the  opposition  of  the  Japanese  Government  having 
been  removed  in  the  circumstances  indicated  in 
another  despatch  written  by  M.  Krupensky  to  the 
Russian  Government  on  February  8,  1917,  reporting 
on  his  efforts  to  induce  Japan  to  withdraw  her  oppo- 
sition to  China's  entry  into  the  war  on  the  side  of 
the  Allies.*    (See  page  141  for  footnote.) 


APPENDICES  141 

Further,  it  is  reasonable  to  point  out  that,  if  Japan 
had  not  occupied  it,  the  leased  territory  of  Kiaochow 
would  in  any  event  have  been  directly  restored  to 
China  as  one  of  the  States  associated  with  the  Allied 
Powers  and  the  United  States  in  the  war  against  the 
Central  Powers. 


THE  CONGRESS  OF  BERLIN 

The  submission  is  further  made  that,  in  addition  to 
the  foregoing  reasons,  there  are  precedents  justifying 
the  Peace  Conference  in  dealing  with  the  Treaties  of 
1915  in  the  sense  of  abrogation. 

The  Congress  of  Berlin  is  an  instance  of  the  Great 
Powers,  acting  as  a  whole  and  collectively,  revising 
a  treaty  concluded  between  two  states,  i.e.  Russia 
and  Turkey  for  a  variety  of  reasons  but  mainly  be- 
cause the  settlement  dictated  by  Russia  at  San  Stef  ano 
was  deemed  ultimately  to  endanger  the  peace  of 
Europe. 

*  In  this  connection,  it  is  right  to  note  China's  war-services 
and  offer  of  man-power  to  the  Allies  and  America.  During 
the  war  a  large  contingent  of  Chinese  workers  laboured  for 
the  Allies  behind  the  battle  lines  in  Northern  France.  They 
eventually  numbered  130,678.  Not  a  few  of  them  were  killed 
or  wounded  by  enemy  operations.  In  addition  to  these  work- 
ers in  France,  a  large  number  were  employed  in  connection 
with  the  British  operations  in  Mesopotamia  and  German  East 
Africa;  and  the  crews  of  quite  a  considerable  number  of 
British  ships  consisted  of  Chinese  seamen. 

Besides  placing  at  the  disposal  of  the  Allied  Governments 
nine  steamers,  which  were  greatly  needed  for  the  Chinese 
export  trade,  the  Chinese  Government  offered  to  despatch  an 
army  of  100,000  to  reinforce  the  man-power  of  the  Allied  and 
Associated  States  in  France.  The  offer  was  favourably  enter- 
tained by  the  Inter-Allied  Council  in  Paris;  but  owing  to 
Allied  inability  to  supply  the  necessary  tonnage  for  transport, 
the  proposal  eventually  could  not  be  carried  out 


142  APPENDICES 

It  is  urged  that  the  settlement  dictated  by  Japan  at 
Peking  in  1915  endangers  directly  the  peace  of  Far 
Asia  and,  ultimately,  the  peace  of  the  world. 


A  CONFERENCE  RULING 

There  are  two  other  arguments  against  the  validity 
of  the  Treaties  of  1915.  One  is  based  on  a  ruling 
of  the  Conference  and  the  other  on  the  lack  of  finality 
affecting  the  Treaties. 

By  Article  1  of  the  "Treaty  Respecting  the  Prov- 
ince of  Shantung" — which  embodies  the  first  of  the 
Twenty-One  Demands — the  Chinese  Government  en- 
gage to  recognize  any  agreement  concluded  between 
Japan  and  Germany  respecting  the  disposition  of  the 
latter's  "rights,  interests  and  concessions'*  in  the 
province;  and  in  the  notes  exchanged  regarding  Kiao- 
chow,  Japan  subjects  the  restoration  of  the  leased 
territory  to  the  condition  inter  alia,  that  "a  conces- 
sion under  the  exclusive  jurisdiction  of  Japan  [is]  to 
be  established  at  a  place  designated  by  the  Japanese 
Government." 

As  regards  this  Article  1  of  the  Treaty,  it  is  im- 
portant to  emphasize  the  point  that  Japan  is  debarred 
from  negotiating  separately  with  Germany  in  respect 
of  the  latter's  system  in  Shantung  owing  to  the  deci- 
sion of  the  Conference  to  deal  with  German  "terri- 
tories and  cessions"  without  consulting  Germany. 

On  this  view  it  is  plain  that  Japan  is  not  in  a  posi- 
tion to  agree  with  Germany  regarding  the  "free  dis- 
posal" of  Kiaochow  and  that  the  article  in  question 
should  be  deemed  inoperative. 


APPENDICES  143 

AN  ILLUSORY  RESTORATION  OF  KIAOCHOW 

The  same  objection  applies  to  the  notes  exchanged. 
And  even  if  this  were  not  so,  the  illusory  character 
of  the  restoration  of  Kiaochow  contemplated  in  them 
would  be  a  proper  matter  for  the  consideration  of  the 
Peace  Conference  in  deciding  on  Japan's  claim  for 
the  unconditional  cession  of  Kiaochow  and  the  rest 
of  the  German  system  in  Shantung. 

The  chief  value  of  Kiaochow  lies  partly  in  the  har- 
bour of  Tsingtao  and  partly  in  an  area  dominating 
the  finest  anchorage  of  that  harbour  which  has  been 
delimited  by  the  Japanese  Government  and  is  already 
reserved  for  exclusive  Japanese  occupation  under 
Japanese  jurisdiction,  no  other  than  Japanese  being 
permitted  to  hold  land  witliin  its  boundaries. 

This  delimited  area,  presumably,  is  the  "place  to  be 
designated  by  the  Japanese  Government"  as  "a  con- 
cession under  the  exclusive  jurisdiction  of  Japan." 
The  restoration  of  Kiaochow  to  China,  with  retention 
by  Japan  of  the  area  dominating  it,  would  be  the 
restoration  of  the  "shadow"  of  this  "place  in  the  sun" 
and  the  retention  of  its  substance  by  Japan. 

LACK  OF  FINALITY 

Since  the  date  of  the  Treaties  of  1915,  even  Japan 
has  acted  on  the  assumption  that  they  are  lacking  in 
finality. 

It  is  evident  that  the  scheme  worked  out  in  the 
Twenty-One  Demands  and  in  the  Treaties  of  1915 
demanded  for  its  permanence  the  assent  of  the  Great 
Powers  with  whom  Japan  was  and  is  under  agree- 


144  APPENDICES 

ment  guaranteeing  the  independence  and  integrity  of 
China. 

Accordingly,  the  Japanese  Government  secured  the 
conclusion  of  two  treaties  with  Russia  in  the  summer 
of  1916.  One  was  made  public  and,  before  its  signa- 
ture, was  communicated  to  the  British  Government. 
But  the  other  was  a  secret  treaty,  consisting  of  six 
articles  whereof  the  last  provided  that  the  "present 
Convention  shall  be  kept  in  complete  secrecy  from 
everybody  except  the  two  High  Contracting  Parties.* 

If  these  significant  documents  are  to  be  interpreted 
accurately  they  must  be  studied — ^particularly  the 
secret  treaty — in  connection  with  the  Anglo- Japanese 
Treaty  of  Alliance  of  July  13,  1911.  The  latter  pro- 
vides, in  Art.  3,  that  "the  High  Contracting  Parties 
agree  that  neither  of  them  will,  without  consulting  the 
other,  enter  into  separate  arrangement  with  another 
Power  to  the  prejudice  of  the  objects  described  in  the 
preamble  of  this  Agreement."  One  of  these  objects 
is  defined  to  be  "the  preservation  of  the  common  in- 
terests of  all  Powers  in  China  by  insuring  the  inde- 
pendence and  integrity  of  the  Chinese  Empire  and  the 
principle  of  equal  opportunities  for  the  commerce  and 
industry  of  all  nations  in  China." 


*  Commenting  on  the  Treaties  in  its  issue  of  December  24, 
1917,  a  great  organ  of  British  public  opinion  pointed  out  that 
there  were  considerable  differences  between  the  public  and 
secret  documents :  "The  Public  Treaty  professes  to  aim  at 
maintaining  a  lasting  peace  in  the  Far  East  and  makes  no 
reference  to  China:  the  Secret  Treaty  is  not  concerned  with 
Peace  but  with  the  interests  of  both  contracting  Powers  in 
China.  .  .  .  The  Public  Treaty  indicates  consultation  be- 
tween the  contracting  parties  as  to  the  measures  to  be  taken, 
the  Secret  Treaty  points  to  military  measures  and  is  definitely 
a  military  alliance." 


APPENDICES  145 

It  is  obvious  that  this  specific  object  of  the  Anglo- 
Japanese  Treaty  would  be  infringed  by  the  political 
domination  of  China  or  any  portion  of  the  territory 
of  the  Chinese  Republic  by  either  or  both  of  the  con- 
tracting parties  to  the  secret  Russo-Japanese  Treaty. 
And  yet  this  secret  Treaty,  in  Art.  1,  fails  to  provide 
against  the  "poHtical  domination  of  China"  by  either 
or  both  Japan  and  Russia  although  a  secret  military 
alliance  is  definitely  made  by  the  two  Powers  against 
the   "political   domination   of    China   by   any   third 

POWER." 

A  further  comment  may  be  added.  Article  2  of 
the  Public  Treaty  provides  for  consultation  between 
Japan  and  Russia  in  case  their  territorial  rights  or 
special  interests  in  the  Far  East  be  threatened.  The 
specific  reference  to  China  in  the  Secret  Treaty  shows 
that  the  "special  interests"  of  the  parties  contemplated 
were  those  recognised  by  each  other  as  existing  in 
China.  There  can  be  no  question  whatever  that,  under 
the  Treaties  of  1915,  Japan  secured  valuable  terri- 
torial rights  and  special  interests  in  great  regions  of 
China  like  South  Manchuria,  Eastern  Inner  Mongolia 
and  Shantung.  Indeed,  the  cumulative  effect  of  these 
Treaties  of  1915  is  to  centre  in  the  hand  of  Japan  a 
"political  domination  of  China"  conflicting  with  the 
preamble  of  the  Anglo- Japanese  alliance. 

FURTHER  NEGOTIATIONS  WITH  RUSSIA 

Further  negotiations  between  Japan  and  Russia  are 
reported  in  another  despatch  written  by  M.  Krupen- 
sky  to  Petrograd  under  date  of  February  8,  1917. 

The  Ambassador  was  reporting  on  his  eflforts  to 


146  APPEiNDICES 

induce  Japan  to  withdraw  her  opposition  to  China's 
entry  into  the  war  on  the  side  of  the  Allies.  After 
stating  that  he  never  omitted  "an  opportunity  for  rep- 
resting  to  [Viscount  Motono]  the  Japanese  Minister 
for  Foreign  Affairs,  the  desirability,  in  the  interests 
of  Japan  herself,  of  China's  intervention  in  the  war" 
and  that  the  Minister  had  promised  "to  sound  the 
attitude  of  Peking  without  delay,"  M.  Krupensky  re- 
ported that: 

"On  the  other  hand,  the  Minister  pointed  out  the 
necessity  for  him,  in  view  of  the  attitude  of  Japanese 
opinion  on  the  subject,  as  well  as  with  a  view  to  safe- 
guard Japan's  position  at  the  future  Peace  Confer- 
ence, if  China  should  be  admitted  to  it  (italics  added), 
of  securing  the  support  of  the  Allied  Powers  to  the 
desires  of  Japan  in  respect  of  Shantung  and  the  Pa- 
cific Islands.  These  desires  are  for  the  succession  to 
all  the  rights  and  privileges  hitherto  possessed  by 
Germany  in  the  Shantung  Province  and  for  the  ac- 
quisition of  the  Islands  to  the  north  of  the  equator 
which  are  now  occupied  by  the  Japanese.  Motono 
plainly  tcrfd  me  that  the  Japanese  Government  would 
like  to  receive  at  once  the  promise  of  the  Imperial 
(Russian)  Government  to  support  the  above  desires 
of  Japan." 

"In  order  to  give  a  push,"  the  Ambassador  added 
persuasively,  "to  the  highly  important  question  of  a 
break  between  China  and  Germany  I  regard  it  as  very 
desirable  that  the  Japanese  should  be  given  the  prom- 
ise they  ask." 


APPENDICES  147 

THE  RUSSIAN   PROMISE 

This  promise  was  given  in  the  following  communi- 
cation, dated  at  "Tokyo,  le  20  fevrier/15  mars  1917: 

"En  reponse  a  la  notice  du  Ministere  des  Affaires 
Etrangeres  du  Japon,  en  date  du  2  fevrier  dernier, 
TAmbassade  de  Russie  est  chargee  de  donner  au 
Gouvernement  Japonais  V  assurance  qu'il  peut  entiere- 
ment  compter  sur  Tappui  du  Gouvernement  Imperial 
de  Russie  par  rapport  a  ses  desiderata  concemant  la 
cession  eventuelle  au  Japon  des  droits  appartenant  a 
TAllemagne  au  Chantoung  et  des  iles  allemandes  oc- 
cupees  par  les  forces  japonaises  dans  l^Ocean  Pacifique 
au  nord  de  I'equateur." 

It  is  reasonable  to  suggest  that  if  Japan  had  at  this 
date  regarded,  in  a  sense  of  finality,  the  settlement  im- 
posed on  China  in  1915,  there  would  have  been  no 
necessity  for  Japan  to  insist  on  Allied  support  of  her 
claim  regarding  Shantung  at  the  future  Peace  Con- 
ference. 

OTHER  ALLIED  PROMISES 

The  same  remark  applies  to  the  other  promises  of 
support  secured  by  the  Japanese  Government  from 
Great  Britain  on  February  16,  1917;  from  France,  on 
March  1,  1917;  and  from  Italy  whose  Minister  for 
Foreign  Affairs  verbally  stated  on  March  28,  1917, 
that  "the  Italian  Government  had  no  objection  re- 
garding the  matter." 

Without  attempting  to  express  here  the  Chinese 
sense  of  disappointment  at  the  conclusion  of  these 
agreements  at  a  time  when  China  was  definitely  align- 
ing herself  with  the  Allied  and  Associated  States  in 


148  APPENDICES 

the  struggle  against  the  Central  Powers,  it  is  per- 
tinent to  state  that,  in  the  view  of  the  Chinese  Gov- 
ernment, these  Allied  promises  to  Japan  in  so  far  as 
they  relate  to  China  cannot  be  deemed  binding  on 
Great  Britain,  France  and  Italy  on  the  main  ground 
that  China's  subsequent  entry  into  the  war  on  August 
14,  1917,  in  association  with  the  Allies  and  the  United 
States  involved  such  a  vital  change  of  the  circum- 
stances existing  at  the  dates  of  the  respective  prom- 
ises and  of  the  situation  contemplated  therein  that  the 
principle  of  rebus  sic  stantibus  necessarily  applies  to 
them. 

DISCLAIMER  BY  CHINESE  GOVERNMENT 

That  the  Chinese  Government  also  regarded  the 
Treaties  of  1915  as  lacking  in  finality  is  clear  from 
the  disclaimer  registered  in  their  official  statement  on 
the  negotiation  connected  with  the  Twenty-One  De- 
mands. 

Although  threatened  by  the  presence  of  large  bodies 
of  troops  despatched  by  the  Japanese  Government  to 
South  Manchuria  and  Shantung — whose  withdrawal, 
the  Japanese  Minister  at  Peking  declared  in  reply  to 
a  direct  inquiry  by  the  Chinese  Government,  would 
not  be  effected  "until  the  negotiations  could  be 
brought  to  a  satisfactory  conclusion" — ^the  Chinese 
Government  issued  an  official  statement  immediately 
after  this  "satisfactory  conclusion"  had  been  effected 
under  pressure  of  the  Ultimatum  of  May  7,  1915,  de- 
claring that  they  were  "constrained  to  comply  in  full 
with  the  terms  of  the  Ultimatum,  but  in  complying 
the  Chinese  Government  disclaimed  any  desire  to  as- 


APPENDICES  149 

sociate  themselves  with  any  revision,  which  may  be 
effected,  of  the  various  conventions  and  agreements 
concluded  between  other  Powers  in  respect  of  the 
maintenance  of  China's  territorial  independence  and 
integrity,  the  preservation  of  the  statiis  quo,  and  the 
principle  of  equal  opportunity  for  the  commerce  and 
industry  of  all  nations  in  China." 


The  foregoing  declaration  was  preceded  by  an  ac- 
count of  the  manner  in  which  the  negotiations  had 
been  conducted  or,  more  accurately,  dictated  by  Japan. 
It  was  shown  how,  faced  by  Twenty-One  Demands  of 
a  powerful  government  "determined  to  attain  this  end 
by  all  means  within  their  power"  and  at  a  selected 
moment  when  three  of  the  Powers — with  whom  Japan 
had  severally  guaranteed  the  independence  and  integ- 
rity of  China — were  engaged  in  a  deadly  struggle  with 
the  Germanic  Kingdoms,  China  was  compelled  to 
enter  into  a  singularly  unequal  negotiation  with  Japan. 

It  was  a  negotiation  in  which  the  number  and  vir- 
tually the  personnel  of  China's  representatives  were 
dictated  to  her.  It  was  a  negotiation  in  which  Japan 
refused  to  have  official  minutes  of  the  proceedings 
kept  as  proposed  by  China,  with  the  result  that  the 
Japanese  and  Chinese  representatives  differed  in  their 
respective  records  of  important  declarations  made  by 
the  latter,  and,  on  the  basis  of  some  of  these  differ- 
ences, the  Japanese  Government  in  their  Ultimatum 
accused  the  Chinese  Government  of  "arbitrarily  nul- 
lifying" statements  alleged  to  have  been  made — but 
in  fact  never  made — by  the  senior  Chinese  represen- 


150  APPENDICES 

tative.  It  was  a  negotiation  in  the  course  of  which — 
these  are  the  words  of  the  Chinese  Official  Statement 
issued  at  the  time:  "the  Japanese  Minister  twice  sus- 
pended the  conferences,  obviously  with  the  object  of 
compelling  compliance  with  his  views  on  certain  points 
at  the  time  under  discussion."  In  a  word,  it  was  a 
negotiation  in  which  Japan  dominated  and  dictated 
the  course  and  the  terms  of  the  discussion. 

PROTEST  BY  UNITED  STATES  GOVERNMENT 

Presumably  it  was  as  much  this  element  of  hars^i- 
ness  as  the  subject  matter  of  the  negotiation  which 
moved  the  Government  of  the  United  States  concur- 
rently to  address  to  the  Chinese  and  Japanese  Gov- 
ernments, four  days  after  the  delivery  of  the  Ulti- 
matum to  China,  the  following  identic  note: 

"In  view  of  the  circumstances  of  the  negotiations 
which  have  taken  place  and  which  are  now  pending 
between  the  Government  of  China  and  the  Govern- 
ment of  Japan  and  of  the  agreements  which  have 
been  reached  as  a  result  thereof,  the  Government  of 
the  United  States  has  the  honour  to  notify  the  Gov- 
ernment of  the  Chinese  Republic  [Japan] ,  that  it  can- 
not recognise  any  agreement  or  undertaking  which 
has  been  entered  into  between  the  Governments  of 
China  and  Japan  impairing  the  treaty  rights  of  the 
United  States  and  its  citizens  in  China,  the  political 
or  territorial  integrity  of  the  Republic  of  China  or 
the  international  policy  relative  to  China  commonly 
known  as  the  Open  Door  Policy.  An  identical  note 
has  been  transmitted  to  the  Japanese  [Chinese]  Gov- 
ernment." 


APPENDICES  151 


CONCLUSION 

Summing  up  the  foregoing  arguments,  it  is  sub- 
mitted that  they  establish  the  claim  of  China  for  the 
abrogation  of  the  Treaties  of  1915 — 

I.  Because  these  Treaties  are  and  constitute  one 
entire  transaction  or  entity  arising  out  of  the  war  and 
they  attempt  to  deal  with  matters  whose  proper  de- 
termination is  entirely  a  right  and  interest  of  the 
Peace  Conference; 

II.  Because  they  contravene  the  Allied  formula  of 
justice  and  principles  now  serving  as  the  guiding  rules 
of  the  Peace  Conference  in  its  task  of  working  out  a 
settlement  of  the  affairs  of  nations  in  order  to  prevent 
or  minimise  the  chances  of  war  in  the  future; 

III.  Because,  specifically,  they  violate  the  territo- 
rial integrity  and  political  independence  of  China  as 
guaranteed  in  the  series  of  conventions  and  agree- 
ments severally  concluded  by  Great  Britain,  France, 
Russia  and  the  United  States  with  Japan ; 

IV.  Because  they  were  negotiated  in  circumstances 
of  intimidation  and  concluded  under  the  duress  of  the 
Japanese  ultimatium  of  May  7,  1915;  and 

V.  Because  they  are  lacking  in  finality,  being  so 
regarded  by  Japan  who  sought  to  make  them  final 
by  negotiating — before  China  was  suffered  to  enter 
the  war  in  association  with  the  Allies  and  the  United 
States — a  set  of  secret  agreements  at  variance  with 
the  principles  accepted  by  the  Belligerents  at  the  basis 
of  the  peace  settlement. 


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